Law and Administration (Law in Context)

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Law and Administration As the branch of law dealing with the exercise of governmental power, and so directly concerned with politics, policy issues and good governance values, administrative law can challenge even the advanced student. In response, this classic text looks at both the law and the factors informing it, elaborating the foundations of the subject. This contextualised approach allows the reader to develop a broad understanding of the subject. The authors consider the distinctive theoretical frameworks which inform study of this challenging subject. Case law and legislation are set out and discussed and the authors have built in a range of case studies, to give a clear practical dimension to the study. This new and updated edition will cement the title’s prominent status. Carol Harlow FBA, QC (Hon), is Emerita Professor of Law at the London School of Economics and Political Science Richard Rawlings is Professor of Public Law at University College London

The Law in Context Series Editors: William Twining (University College London), Christopher McCrudden (Lincoln College, Oxford) and Bronwen Morgan (University of Bristol). Since 1970 the Law in Context series has been in the forefront of the movement to broaden the study of law. It has been a vehicle for the publication of innovative scholarly books that treat law and legal phenomena critically in their social, political and economic contexts from a variety of perspectives. The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities. A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion. It is hoped that this orientation is at once more stimulating and more realistic than the bare exposition of legal rules. The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship. They are written primarily for undergraduate and graduate students of law and of other disciplines, but most also appeal to a wider readership. In the past, most books in the series have focused on English law, but recent publications include books on European law, globalisation, transnational legal processes, and comparative law. Books in the Series Anderson, Schum and Twining: Analysis of Evidence Ashworth: Sentencing and Criminal Justice Barton and Douglas: Law and Parenthood Beecher-Monas: Evaluating Scientific Evidence: An interdisciplinary framework for intellectual due process Bell: French Legal Cultures Bercusson: European Labour Law Birkinshaw: European Public Law Birkinshaw: Freedom of Information: The law, the practice and the ideal Cane: Atiyah’s Accidents, Compensation and the Law Clarke and Kohler: Property Law: Commentary and materials Collins: The Law of Contract Cranston: Legal Foundations of the Welfare State Davies: Perspectives on Labour Law Dembour: Who Believes in Human Rights?: The European Convention in question de Sousa Santos: Toward a New Legal Common Sense Diduck: Law’s Families Elworthy and Holder: Environmental Protection: Text and materials Fortin: Children’s Rights and the Developing Law Glover-Thomas: Reconstructing Mental Health Law and Policy Goldman: Globalisation and the Western Legal Tradition: Recurring patterns of law and authority

Gobert and Punch: Rethinking Corporate Crime Harlow and Rawlings: Law and Administration Harris: An Introduction to Law Harris, Campbell and Halson: Remedies in Contract and Tort Harvey: Seeking Asylum in the UK: Problems and prospects Hervey and McHale: Health Law and the European Union Holder and Lee: Environmental Protection, Law and Policy Kostakopoulou: The Future Governance of Citizenship Lacey, Wells and Quick: Reconstructing Criminal Law Lewis: Choice and the Legal Order: Rising above politics Likosky: Transnational Legal Processes Likosky: Law, Infrastructure and Human Rights Maughan and Webb: Lawyering Skills and the Legal Process McGlynn: Families and the European Union: Law, politics and pluralism Moffat: Trusts Law: Text and materials Monti: EC Competition Law Morgan and Yeung: An Introduction to Law and Regulation: Text and materials Norrie: Crime, Reason and History O’Dair: Legal Ethics Oliver: Common Values and the Public–Private Divide Oliver and Drewry: The Law and Parliament Picciotto: International Business Taxation Reed: Internet Law: Text and materials Richardson: Law, Process and Custody Roberts and Palmer: Dispute Processes: ADR and the primary forms of decision-making Scott and Black: Cranston’s Consumers and the Law Seneviratne: Ombudsmen: Public services and administrative justice Stapleton: Product Liability Tamanaha: The Struggle for Law as a Means to an End Turpin and Tomkins: British Government and the Constitution: Text and materials Twining: General Jurisprudence: Understanding Law from a Global Perspective Twining: Globalisation and Legal Theory Twining: Rethinking Evidence Twining and Miers: How to Do Things with Rules Ward: A Critical Introduction to European Law Ward: Law, Text, Terror Ward: Shakespeare and Legal Imagination Zander: Cases and Materials on the English Legal System Zander: The Law-Making Process

Law and Administration Third Edition

CAR OL H AR LOW FBA, QC (Hon), Emerita Professor of Law at the London School of Economics and Political Science

R ICH AR D R AWLINGS Professor of Public Law at University College London

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521197076 © Carol Harlow and Richard Rawlings 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13

978-0-511-64130-5

eBook (NetLibrary)

ISBN-13

978-0-521-19707-6

Hardback

ISBN-13

978-0-521-70179-2

Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

M. Barthélemy, the Dean of the Faculty of Law in the University of Paris, relates that thirty years ago he was spending a week-end with the late Professor Dicey. In the course of conversation M. Barthélemy asked a question about administrative law in this country. ‘In England’, replied Dicey, ‘we know nothing of administrative law; and we wish to know nothing.’ W. A. Robson, ‘The Report of the Committee on Ministers’ Powers’ (1932) 3 Political Quarterly 346.

Contents

1

2

3

Preface

xv

Table of Cases

xxi

Table of Statutes

xli

Red and green light theories

1

1.

Law and state

1

2.

The Diceyan legacy

4

3.

Dicey and ‘red light theory’

22

4.

Ouster clauses and the rule of law

25

5.

‘Green light theory’

31

6.

‘Green light theory’ and control

37

7.

Allocation of functions

40

8.

Towards consensus?

44

The changing state

49

1.

The Trojan horse

49

2.

Bureaucracy and central government

52

3.

The blue rinse

56

4.

The risk and security society

70

5.

The security state

80

6.

‘Hollowing out the state’

83

7.

A state of change

92

Transforming judicial review

95

1.

Beginnings

95

2.

Rebuilding judicial review

99

3.

Rapid expansion

102

4.

Rationality

105

x

Contents

5.

Rights-based review

109

6.

The shadow of the Convention

113

7.

Rights, unreasonableness and proportionality

120

8.

The Human Rights Act and after

126

9.

Rhetoric meets reality

128

Lions, mice or bulldogs?

135

10.

4

5

6

7

Making the law

140

1.

Legislation and constitutional change

140

2.

Parliament and courts

143

3.

Parliament the watchdog

149

4.

Delegated legislation

163

5.

Access and participation

170

6.

Climbing the ladder: EC law

179

7.

Restoring the balance

188

Rules and discretion

190

1.

Law and ‘soft law’

190

2.

Some reasons for rules

195

3.

Structuring discretion

200

4.

Rules, principles and discretion

203

5.

Rules, individuation and consistency

217

6.

Bucking the rules

222

Regulation and governance

233

1.

Essence

233

2.

Classification, explanation and formulation

238

3.

Blue-rinsed regulation

247

4.

‘Better regulation’

251

5.

Better regulation – mark II

255

6.

Risk-based regulation

269

7.

The EU (and global) connection

276

8.

Conclusion

280

Regulatory design and accountability

282

1.

The agency model

283

2.

Regulatory development: A case study

292

xi

Contents

8

9

10

11

12

3.

Accountability matters

304

4.

Breaking the mould

323

5.

Conclusion

336

Contractual revolution

338

1.

Old and new

341

2.

Pseudo-contract: Regulation and responsibilisation

350

3.

Outsourcing: Policy and structures

357

4.

Flashpoints

367

5.

Contract-making: Europeanisation

383

6.

Conclusion

392

Contract, contract, contract

393

1.

The franchising technique

394

2.

Overground

402

3.

Loads of money: PPP and PFI

413

4.

Underground

425

Into the jungle: Complaints, grievances and disputes

437

1.

Informal justice

437

2.

Digging down

444

3.

Complaints: Is anybody there?

450

4.

Review, revision and reappraisal

456

5.

Ombudsmania

480

6.

Administrative justice?

483

Tribunals in transition

486

1.

Franks and after: Establishing values

488

2.

Tribunals for users

492

3.

Welfare adjudication: Discretion to rules

494

4.

Tribunals watchdog?

505

5.

Courts, tribunals and accountability

509

6.

Regularising asylum appeals

514

7.

Tribunals reformatted

520

The Parliamentary Ombudsman: Firefighter or fire-watcher?

528

1.

In search of a role

528

2.

The PCA’s office

530

xii

Contents

13

14

15

3.

From maladministration to good administration

534

4.

Firefighting or fire-watching?

537

5.

Inquisitorial procedure

543

6.

The ‘Big Inquiry’

549

7.

Occupational pensions: Challenging the ombudsman

554

8.

Control by courts?

562

9.

Conclusion: An ombudsman unfettered?

565

Inquiries: A costly placebo?

570

1.

They just grew

573

2.

Inquiries: A mixed bag

579

3.

Inquiries and the planning process

582

4.

A Spanish Inquisition?

588

5.

Inquiries and accountability

593

6.

The judiciary: ‘Symbolic reassurance’

600

7.

Towards reform

604

8.

Inquiries and human rights

609

9.

Conclusion

614

Continuity and change: Procedural review

616

1.

Scene-setting

618

2.

Flexibility: The sliding scale

624

3.

Pragmatism, rights and the Strasbourg effect

636

4.

Broader horizons

644

5.

Insider dealings

652

6.

‘Is judicial review good enough?’

660

7.

Conclusion

666

Elite dimension: Court structures and process

668

1.

Models of judicial review

669

2.

Organisational arrangements

679

3.

Regulating access

687

4.

Matters of interest

694

5.

Fact-base

703

6.

Conclusion

709

xiii

Contents

16

17

Judicial review and administration: A tangled web

711

1.

Litigation patterns

712

2.

Tempering: Rights and resources

717

3.

Remedies: A precision instrument?

722

4.

In search of ‘impact’

727

5.

Mainstreaming?

733

6.

Litigation saga

738

7.

Conclusion

747

‘Golden handshakes’: Liability and compensation

749

1.

Liability or compensation?

749

2.

Tort law, deterrence and accountability

755

3.

Duties, powers and omissions

760

4.

Defensive administration, ‘decision traps’ and immunity

764

5.

The shadow of Europe

771

6.

Alternatives to tort law

777

7.

Ombudsmen and redress

783

8.

Towards a compensation culture?

791

Index

795

Preface: Three decades of law and administration

Law and Administration has never been simply a textbook of administrative law. As its title signifies, our primary objective in writing it was to further the study of law in the context of public administration and politics: the ‘law in context’ approach. We need to remind the contemporary reader that the first edition reflected an era of legal formalism when the study of case law, largely divorced from its social context, was seen as the be-all-and-end-all of legal studies. The formalist approach was reflected both in the dominant casebook method of teaching and the leading administrative law textbooks: de Smith’s Judicial Review of Administrative Action – a title that speaks for itself – and Wade’s Administrative Law, a slimmer version of the current well respected text.1 We saw formalism or legal positivism as largely obscuring both the plural character and the wide parameters of administrative law. Our preoccupations, spelled out clearly in the preface to the first edition, were ‘process’, ‘legitimacy’ ‘competency’ and a functionalist concern with effectiveness and efficiency. We made our points through lengthy case studies of administrative process, focusing especially on social security, immigration and planning law. Our aim was to further a pluralist approach to the study of administrative law. Throughout our book we emphasised that public bodies possessed their own distinctive ethos, so too did the legal profession. Actors were also presented as individuals, holding different opinions and with differing styles; legal academics were likely to be similarly opinionated. We set out to convey this to our readers by allowing them so far as possible to speak in their own voices. This pluralist approach characterises every edition. In respect of judicial review, we tried, by the inclusion of case studies, to free the case law from the formalist method that had smothered its political connotations and to re-establish the connections between judicial review and its political context. Judges, Sir William Wade acknowledged, were ‘up to their necks in policy, as they had been all through history, and nothing could illustrate this more vividly in our own time than the vicissitudes of administrative 1

Now H. W. R. Wade and C. Forsyth, Administrative Law, 10th edn (Oxford University Press, 2009). The main exception, Griffith and Street’s Principles of Administrative Law, 5th edn (Pitman Paperbacks, 1973) was out of print and virtually unobtainable.

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Preface: Three decades of law and administration

law.’ Judicial review is inevitably controversial, fought out in numerous tiny battles between (as Sir Cecil Carr once put it) ‘those who want to step on the accelerator [and] those who want to apply the brake’. Only by recognising this, we argued, could the legitimacy of the judicial transformation of judicial review (see Chapter 3) and its proper place in the unwritten constitution be evaluated. Public law, as Martin Loughlin has since expressed it, is a form of political discourse. This too is a theme of all three editions. At the date of our first edition, judicial review had recently emerged from a ‘period of backsliding’ seen by Professor Wade as ‘its lowest ebb for perhaps a century’. The step between Lord Reid’s famous observation that we did not have ‘a developed system of administrative law. . . because until fairly recently we did not need it’ (Ridge v Baldwin, 1963) and Lord Diplock’s assurance that ‘this reproach to English law had been removed’ (O’Reilly v Mackman, 1983) is a huge one, marking judicial review’s rapid progression. This edition tracks further major change. The Human Rights Act 1998 has shown itself to be an added bedrock for a new and necessarily more inventive form of judicial review, constructed under the supervision of the Court of Human Rights at Strasbourg. The case law of the Court of Justice of the European Communities has also been increasingly important. Both can be seen today as embedded in the national legal order, forcing the domestic law of judicial review to move beyond its traditional common law framework. As we shall see in Chapter 15, procedural change to the domestic system has ushered in a ‘multi-streamed’ system of judicial review whose jurisprudential architecture is sometimes well, and sometimes ill, suited to the increasingly complex range of problems our courts are asked to resolve. All this has grounded new arguments, explored in Chapter 3, concerning the legitimacy and competency of judicial process, today expressed in the vocabulary of ‘deference’ and ‘constitutionalism’. We have never denied the place for judicial review in our constitution. We have on the other hand argued that adjudication is ‘an expensive form of decision-taking whose competency ought not lightly to be assumed’. Our early exploration of alternative machinery for redress of grievance such as tribunals and ombudsmen has expanded over time to four chapter-long studies of alternative mechanisms of dispute resolution: from tribunals, inquiries, and ombudsmen to internal complaints-handling machinery more appropriate and proportionate than expensive courts (Chapters 10–13). Nor have we been against accountability and control. Our position is as it always has been that control of the executive and administration can and should be exercised in ways complementary to judicial review that may be more effective. Common to every edition therefore have been extended studies of lawmaking and bureaucratic rule-making, forms of control pioneered both by British ‘green light theorists’ and by the American writer Kenneth Culp Davies as an alternative to courts. In this edition such an emphasis is, we feel, amply justified by the growing phenomenon of ‘juridification’ or governance by rules that links the

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Preface: Three decades of law and administration

bureaucratic world (Chapter 5) with that of the regulator (Chapters 6 and 7). The worlds of politics and Parliament have so far been affected to a lesser extent: there is as yet no requirement that the legislator should be rational! Chapter 4 nonetheless documents some of the changes undergone in recent years by the legislative process, partly under the influence of self-scrutinising parliamentary committees. Techniques developed in the administrative process or by regulators are today paralleled in Parliament where we find experiments with impact assessment, pre- and post-legislative scrutiny, public consultation, monitoring and evaluation. Largely by happenstance, each of our three editions has gone to press on the cusp of a new political era. Looking back at the preface to the first edition, published in 1984, it seems unlikely that we had at that stage fully recognised the significance for administrative law of the 1979 election that had brought Margaret Thatcher’s reforming Conservative government to power. It is indeed hard to recall the political background against which we were writing; the end of an era in which the state had happily combined steering and rowing, retaining the central position in a planned economy that it had come to occupy in the course of two world wars. Swathes of nationalised industry and state-run public services remained as yet to be privatised and liberalised. Not surprisingly perhaps, we largely overlooked the soon-to-be-expanded discipline of regulation. By then threatening to occupy the whole terrain of administrative law, this had to await the second, 1997, edition, where it occupied a central position. The second edition also focused on the replacement of traditional modes of ‘club’ or ‘trust’ government by ‘the objective, Weberian model of standardisation and rules’. Under the label of ‘a blue rinse’, we tracked the reception into the public services of the methodology of ‘New Public Management’ and mentality of audit, noting the growing challenge posed to the values of administrative law. There was some surprise that the election of Tony Blair’s New Labour government did not bring paradigm change. ‘Contracting out’ of public services was not, for example, reversed, though its effects were softened. Public/private partnerships and public finance initiatives greatly increased, bringing pressure for control that the courts largely failed to meet, hence for new methods of accountability (see Chapters 8 and 9). There were further challenges for administrative law from the New Labour programme of constitutional reform: the process of devolution, for example, greatly complicated the structure of the lawmaking process, making it harder to know what is and what is not ‘the law’ (Chapter 4). Nor can we yet foresee what problems may flow from the process of continual administrative change instituted by New Labour under the rubric of modernisation. It has to be said that the picture which emerges in these pages is not one of competence or efficiency; administrative law has had to respond to failing administrative agencies, government departments declared unfit for purpose, whole-scale losses of government information and other serious failures. How far the constant restructuring of central government

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departments and blocking up of agencies into hyper-agencies has contributed to these administrative catastrophes is hard to tell. Equally, how the overhaul of the piecemeal tribunal system in England and Wales by the Tribunals, Courts and Enforcement Act 2007, the recasting of the public inquiry system by the Inquiries Act 2005 and the restructuring of the courts system in the Constitutional Reform Act 2005 will work out in practice is, at the time of writing, far from clear. Modernisation has been moving us fast into uncharted administrative territory of ‘e-governance’ empowered by ICT, bringing promise of greater administrative competence but also new threats to civil liberties and human rights. We ourselves see the pervasive New Labour slogans of ‘inclusivity’, ‘responsive governance’ and ‘community empowerment’ and recourse to the ‘soft’ terminology of openness, accountability, and participation, as deceptive. Equally, it is insufficient to leave everything to courts, a message driven home through the workings of the political process in the context of the so-called ‘war against terror’. This is a lesson we need to remember. At the same time as we have entered the world of ‘public-plus-private’, of ‘governance through contract’ and of ‘decentred regulation’ described in Chapters 6 to 9, we are moving into a larger world of globalized administration and governance. Here states must compete with governance through transnational agencies and networks of assorted public and private actors. Government, as Martin Shapiro defines it, where administration exists ‘as a bounded reality’ and administrative law ‘prescribes behaviour within administrative organizations’ and delineates relationships between ‘those inside an administration and those outside it’, has arguably broken down. No clear boundary exists (if one has ever existed) between the public and the private. New machinery of control and accountability is clearly necessary if the gains of greater political participation and greater transparency of decision-making associated by Alfred Aman with the administrative law of the 1960s and 1970s are not to be lost. To exemplify, the campaign for freedom of information that came to a head in the 1980s has to a certain extent been won; we now have to take on board and resolve the growing concerns over the emergent ‘surveillance society’ with its impact on privacy and data protection. Once again we seem to be standing on the cusp of a paradigm change, characterised this time by a rapid re-entry of the state into central areas of economic and financial affairs marked out by economic liberals in the last decade of the twentieth century as sacrosanct areas for private enterprise. We can only speculate on the changes that will be required from administrative law and the contribution administrative law will be able to make. We cannot end without thanking the many people who have helped to bring this edition to press, starting with our families, who have had to suffer much inattention and, from time to time, some grumpiness. Susan Hunt helped with this, as with every, edition. Sylvia Lough played an equally valuable role. We also had much help and encouragement from Mark Aronson, Julia Black, Peter

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Cane, Genevra Richardson and Richard Thomas who read and commented on some of the chapters and gave us the benefit of their expertise. We also thank our publishers, and particularly our copy-editor Jeremy Langworthy, for showing patience and understanding. Carol Harlow, Richard Rawlings, March 2009.

Table of Cases

A (Children) (Conjoined Twins: Surgical Separation), Re [2001] 2 WLR 480 ........... 701 A and Others v HM Treasury [2008] EWHC 869 ............................................................. 15 A and Others v Home Secretary (No 1) [2005] 2 AC 68 ...................14, 128, 131–34, 730 A and Others v Home Secretary (No 2) [2005] 1 WLR 414, CA; [2006] 2 AC 221, HL ........................................................................................................ 14, 130 131, 677, 703 A and Others v UK, Application No. 3455/05 (19 February 2009).......................129, 133 ABCIFER v Defence Secretary [2003] EWCA Civ 473 ................................................... 786 AL (Serbia) v Home Secretary [2008] 1 WLR 1434......................................................... 215 Albert and Le Compte v Belgium (1983) 5 EHRR 533 ................................................... 661 Ali v Birmingham City Council [2008] EWCA Civ 1228............................................... 666 Abbey Mine Ltd v Coal Authority [2008] EWCA Civ 353.....................................626, 646 Airey v Ireland (1979) 2 EHRR 305 ................................................................................... 639 Albion Water Ltd v Water Services Regulation Authority [2006] CAT 23 ................. 322 Alcatel: C-81/98 [1999] ECR I-7671 ..........................................................................390, 391 Algemene Transport-en Expeditie Onderneming van Gend en Loos NV v Nederlandse Belastingadministratie: 26/62 [1963] ECR 1, ECJ ........................179, 180 Ali (Nakkuda) v MF De S Jayaratne [1951] AC 66, PC .................................................. 622 Alpharma v Council: T-70/99 [2002] ELR II-3475, CFI ................................................. 270 Al-Skeini and Others v Defence Secretary [2007] UKHL 26 ...........................14, 133, 613 Amministrazione delle Finanze dello Stato v SpA San Giorgio: 199/82 [1983] ECR 3595, ECJ ..........................................................................................................679, 776 Amphitrite, The. See Rederiaktiebolaget Amphitrite v R Anderson v UK (1997) 25 EHRR 172................................................................................ 114 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, HL ........26–30, 100, 369, 510, 511, 729 Anns v Merton London Borough Council [1978] AC 728.....................................760, 763 Arbon v Anderson [1943] KB 252 ..................................................................................... 640 Ashby v White (1703) 2 Ld Raym 938...................................................... 750, 751, 758, 759 Assistant Deputy Coroner for Inner West London v Channel 4 Television Corporation [2007] EWHC 2513 .................................................................................. 577 Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, CA ................................................................42, 99, 120, 639, 659, 672, 675, 678, 704, 720 Aston Cantlow and Wilcote with Billesley Parochial Church Council v Wallbank [2003] 3 WLR 283 ....................................................................................................377, 380 A-G (ex rel McWhirter) v Independent Broadcasting Authority [1973] QB 629....... 696

xxii

Table of Cases A-G v De Keyser’s Royal Hotel Ltd [1920] AC 508................................................... 11, 753 A-G v Great Eastern Rly Co (1880) 5 App Cas 473, HL ................................................. 367 A-G of Hong’ Kong v Ng Yuen Shiu [1983] 2 AC 629, PC ............................................ 223 Audit Commission v Ealing Borough Council [2005] EWCA Civ 556................218, 728 Austin v MPC [2009] UKHL 5 ............................................................................................. 83 Australian Capital Television Pty Ltd v Commonwealth of Australia (1992) 177 CLR 106, HC of A ............................................................................................................ 114 AWG Group v Morrison [2006] 1 WLR 1163 ................................................................. 654 Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623, HL .......................................... 371 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 ......... 657 Barrett v Enfield London Borough Council [2001] 2 AC 550........................................ 767 Bate v Chief Adjudication Officer [1996] 1 WLR 814 ..................................................... 729 Begum (Runa) v Tower Hamlets LBC [2003] 2 WLR 388 ............ 637, 663, 665, 666, 718 Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 ................. 109, 122, 125, 632, 677, 718 Belize Alliance of Conservation NGOs v Department of the Environment [2004] Env LR 761 ........................................................................................................................ 706 Belize Alliance of Conservation NGOs v Department of the Environment [2003] UKPC 63 ........................................................................................................................... 715 Berkeley v Environment Secretary [2003] 3 WLR 420 ................................................... 724 Bernard v Enfield LBC [2001] EWCA Civ 1831 .............................................................. 772 Birkdale District Electric Supply Co Ltd v Southport Corpn [1926] AC 355, HL ...... 371 Black v United Kingdom (2007) 45 EHRR 25 .................................................................. 639 Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25, CA .......................................................................................................................... 375 Board of Education v Rice [1911] AC 179, HL ................................................................ 624 Boddington v British Transport Police [1999] AC 143 .................................................. 682 Bottrill v A [2003] 1 AC 449 ............................................................................................... 756 Bradbury v London Borough of Enfield [1967] 1 WLR 1311, CA ........................176, 624 Bradford v McLeod [1986] SLT 244 .................................................................................. 653 Bradley v Jockey Club [2004] EWHC 2164; [2005] EWCA Civ 1056 ..................320, 684 Brasserie du Pecheur SA v Germany: C-46/93 [1996] ECR I-1029, ECJ ...................... 775 British Medical Association v Greater Glasgow Health Board [1989] AC 1211 ......... 342 British Oxygen Co Ltd v Minister of Technology [1970] 3 WLR 488, HL..........218, 222, 223 British Transport Commission v Westmorland County Council [1958] AC 126, HL ...................................................................................................................................... 371 Bromley London Borough Council v Greater London Council [1983] 1 AC 768, HL .............................................................................. 84, 100, 103, 106, 126, 426, 695, 731 Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 ...................... 770 Bryan (1996) 21 EHRR 342 .................................................................................. 661–63, 665 Bugdaycay v Secretary of State for the Home Department [1987] AC 514, HL......... 116, 705 Burden v United Kingdom, App 13358/05 (29 April 2008)........................................... 730 Burmah Oil v Bank of England [1980] AC 1090 ............................................................. 705 Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 .................. 26, 753

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Table of Cases Bushell v Secretary of State for the Environment [1981] AC 75, [1980] 3 WLR 22, HL .................................................................................... 585, 586, 625, 647, 648, 651, 663 Calvin v Carr [1979] 2 WLR 755, PC ................................................................................ 626 Campbell v MGN [2004] UKHL 22................................................................................... 463 Campbell and Fell v UK (1984) 7 EHRR 137 ................................................................... 119 Caparo Industries plc v Dickman [1990] 1 All ER 568, HL ........................................... 760 Carltona Ltd v Works Comrs [1943] 2 All ER 560, CA .................................................. 196 Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 ..............................................................................................................................724, 725 Cavanagh and Others v Health Services Commissioner [2005] EWCA Civ 1578 ............................................................................................................................563, 564 Chahal v United Kingdom (1996) 23 EHRR 413, ECtHR ..............................132, 514, 515 Chandler v DPP [1964] AC 763 ........................................................................................... 14 Charles v Judicial Legal Service Commission [2003] 1 LRC 422................................... 629 Chevron USA Inc v NRDC 467 US 837 (1984)................................................................ 312 Chief Constable of the North Wales Police v Evans [1982] 1 WLR 115 ...................... 724 Christie v Leachinsky [1947] AC 573 ................................................................................ 193 Cinnamond v British Airports Authority [1980] 1 WLR 582 ........................................ 625 Clark v University of Lincolnshire & Humberside [2001] WLR 1988 ......................... 684 Cocks v Thanet District Council [1983] 2 AC 286, HL................................................... 681 Comatch v Directeur Général des Douanes et Droits Indirects: C-192/95, [1997] ECR I-165.......................................................................................................................... 776 Commission v CAS Succhi di Frutta SpA: C-496/99 [2004] ECR-I 3801 .................... 385 Commission v Council C-176/03 [2005] ECR 1-7879 .................................................... 263 Commission v Council C-440/05 [2007] ECRI–9097 ..................................................... 263 Commission v France: C-304/02 [2005] I-6263.......................................................279, 385 Commission v France (‘Calais Nord’): C-225/98 [2000] ECR I-7455 .......................... 385 Commission v Ireland: 45/87 [1988] ECR 4035 .............................................................. 384 Commission v Spain: 71/92 [1993] ECR I-5923 .............................................................. 385 Commission v Spain C-278/01 ECR I-14141 ................................................................... 300 Commission v Tetra Laval C-12/03P [2005] ECR I-987 ................................................ 322 Concordia Bus Finland v Helsinki: C-513/99 [2002] ECR I-7213 ................................ 385 Condron v National Assembly for Wales [2007] LGR 87 .............................................. 658 Conway v Rimmer [1968] AC 910 ..................................................................................... 704 Cooke v Social Security Secretary [2001] EWCA Civ 734 .............................................. 522 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 ......................622, 652, 750 Corporate Officer of the House of Commons v Information Commissioner and Dan Leapman et al (2008), IT ........................................................................................ 479 Corporate Officer of the House of Commons v Information Commissioner and Others [2008] EWHC 1084 Admin ............................................................................... 479 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, HL .......................................10, 98, 105, 107, 115, 176, 223, 317, 346, 625, 626, 647, 648 Credit Suisse v Allerdale Borough Council [1996] 4 All ER 129, CA ...................369, 370 Credit Suisse v Waltham Forest London Borough Council [1996] 4 All ER 176, CA ...................................................................................................................................... 369 Crown Lands Comrs v Page [1960] 2 QB 274, CA .......................................................... 345

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Table of Cases D v NSPCC [1978] AC 171 ................................................................................................. 705 Davey v Aylesbury Vale DC [2007] EWCA Civ 1166 .............................................693, 715 Davidson v Scottish Ministers [2004] UKHL 34 ....................................................... 10, 655 Davies v United Kingdom (2002) 35 EHRR 720 ............................................................. 638 Davy v Spelthorne BC [1984] AC 264 ............................................................................... 682 De Cubber v Belgium (1984) 7 EHRR 236 ....................................................................... 664 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69.......................................................................................... 120 Defrenne v Sabena: 43/75 [1976] ECR 455, ECJ .............................................................. 180 Deutsche Morgan Grenfell Group plc v IRC [2006] 3 WLR 781 .................................. 777 Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759 ................................ 653 DK (Serbia) v Home Secretary [2006] EWCA 1246........................................................ 519 Dombo Beheer NV v Netherlands (1994) 18 EHRR 213................................................ 639 Donoghue v Stevenson [1932] AC 562 ............................................................................. 762 Douglas v Hello [2007] UKHL 21 ...................................................................................... 463 Dowty Boulton Paul Ltd v Wolverhampton Corpn [1971] 1 WLR 204 ....................... 372 Duffy, Re [2008] UKHL 4.................................................................................................... 659 Duncan v Cammell Laird & Co Ltd [1942] AC 624 ........................................................ 704 Dwr Cymru v Albion Water Ltd [2008] EWCA Civ 536 ............................................... 322 Dyson v Attorney General (No 1) [1911] 1 KB 410, (No 2) [1912] 1 Ch 158.............. 670 E v Home Secretary [2004] QB 1044 .........................................................................513, 662 East Suffolk Catchment Board v Kent [1941] AC 74 ...................................................... 762 Edwards v SOGAT [1971] Ch 354 ..................................................................................... 320 Ellis v Home Office [1953] 2 QB 153 ................................................................................. 704 Entick v Carrington (1765) 2 Wils KB 275 ....................................................................... 750 Errington v Minister of Health [1935] 1 KB 249 .....................................................622, 651 Ezeh v UK (2002) 35 EHRR 691; (2004) 39 EHRR 1 ...................................................... 639 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 ..............................755, 761 Federated Estates v Secretary of State for the Environment [1983] JPL 812 ............... 585 Ferrazzini v Italy (2002) 34 EHRR 45 ................................................................................ 637 Findlay, Re [1985] AC 318, HL ..................................................................................228, 229 Findlay v United Kingdom (1997) 24 EHRR 221 ............................................................ 652 Finn-Kelcey v Milton Keynes BC [2008] EWCA Civ 1067 ............................................ 690 Fletcher’s Application, Re [1970] 2 All ER 527, CA ........................................................ 562 Francis v First Secretary of State and Greenwich LBC [2007] EWHC 2749 Admin................................................................................................................................ 585 Francovich and Bonifaci v Italy: C-6, 9/90 [1991] ECR I-5357, ECJ ............390, 774, 775 Franklin v Minister of Town and Country Planning [1948] AC 87, HL ..............622, 657 Friends Provident Life & Pensions Ltd v Transport Secretary [2002] 1 WLR 1450..... 663 Freeserve v Director General of Telecommunications [2003] CAT 5 .......................... 321 Fry, ex p [1954] 1 WLR 730, CA ........................................................................................ 724 Furnell v Whangarei Schools Board [1973] 2 WLR 92 ................................................... 652 Garden Cottage Foods v Milk Marketing Board [1984] 1 AC 130................................ 775 Gebroeders Beentjes BV v Netherlands: 31/87 [1989] ECR 4365 ................................. 385

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Table of Cases George v Environment Secretary (1979) LGR 689 .......................................................... 704 Germany v Commission: 24/62 [1963] ECR 69 ............................................................... 632 Gezer v Secretary of State for the Home Department [2004] EWCA Civ 1730 .......... 745 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 1 All ER 533, [1986] AC 112, CA...................................................................................................702, 722 Gillies v Work and Pensions Secretary [2006] UKHL 2 .........................................489, 656 Glynn v Keele University [1971] 2 All ER 89 ................................................................... 724 Goldberg v Kelly (1970) 397 US 254.................................................................................. 641 Golder v United Kingdom (1975) 1 EHRR 524, ECtHR ................................................ 119 Gorringe v Calderdale MBC [2004] UKHL 15 ................................................................ 763 Gouriet v Union of Post Office Workers [1978] AC 435........................................695, 722 Governor Wall’s Case (1802) 28 St Tr 51 ......................................................................... 750 Graham Barclay Oysters Pty ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales v Ryan [2002] HCA 54 .................................................................... 760 Gregory v Camden LBC [1966] 1 WLR 899 ..................................................................... 695 Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 ................................ 691 Hammersmith and City Rly Co v Brand 1869 LR 4 HL 171 .......................................... 753 Hampshire CC v Supportways Community Services Ltd [2006] EWCA Civ 1035..... 376 Hamza v Home Secretary [2002] UKIAT 05185 ............................................................. 517 Hannover v Germany (2005) 40 EHRR 1 ......................................................................... 462 Hardy v Pembrokeshire CC [2006] EWCA Civ 2140 ..................................................... 690 Harmon Facades v Corporate Officer of the House of Commons (1999) EWHC Technology 199 ................................................................................................................ 775 Harmon Facades v Corporate Officer of the House of Commons (2000) EWHC Technology 84 .................................................................................................................. 775 Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, HL ................................................................................................................................368–70 Helle v Finland (1998) 26 EHRR 159 ................................................................................ 638 Helow v Home Secretary [2008] UKHL 62 ...................................................................... 654 Heylens: 222/86 [1987] ECR 4097, ECJ.....................................................................617, 632 Hill v Chief Constable of West Yorkshire [1989] AC 42 ........................................769, 770 Hillingdon London Borough Council v Commission for Racial Equality [1982] AC 779, HL ....................................................................................................................... 311 Hirst v UK: 74025/01 (2005), ECtHR ................................................................................ 159 HK (Infant), Re [1967] 2 QB 617 ....................................................................................... 623 Holgate-Mohammed v Duke [1984] AC 437 ................................................................... 758 Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 ........................ 719 Home Office v Dorset Yacht Co Ltd [1970] 2 WLR 1140 .............................................. 760 Home Secretary v E [2007] EWHC 233 (Admin) ........................................................... 158 Home Secretary v E [2007] UKHL 47 ............................................................................... 133 Horvath v SSHD [199] Imm AR 121 ................................................................................. 512 Huang and Kashmiri v Home Secretary [2007] UKHL 11................... 120, 121, 147, 320, 519, 520, 727 ID v Home Offi ce [2005] EWCA Civ 38 .......................................................................... 757 Interbrew SA v Competition Commission [2001] EWHC Admin 367................313, 627

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Table of Cases International Transport Roth GmbH v Home Secretary [2003] QB 728 ..................... 138 IRC v National Federation of Self Employed and Small Businesses [1981] 2 All ER 93, [1982] AC 617, HL ...............................................................192, 674, 696–98, 705 ISKCON v United Kingdom (1994) 18 EHRR CD 133 .................................................. 661 Ireland v UK [1978] 2 EHRR 25......................................................................................... 133 Jackson v Attorney General [2005] EWCA Civ 126, [2005] QB 579, CA; [2005] UKHL 56, [2005] 3 WLR 733, HL ................................... 111–13, 144–46, 182, 191, 677 JD and Others v East Berkshire Community Health Trust and Others [2003] EWCA Civ 1151; [2005] UKHL 23 ............................................................................... 768 JJ Gallagher Ltd v Transport Secretary [2002] EWHC 1195 .......................................... 707 Johnson (B) & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395 ............... 662 Johnston v Chief Constable of the Royal Ulster Constabulary: 222/84 [1986] ECR 1651, ECJ ..................................................................................................................... 30, 730 Jordan v UK (2001) 37 EHHR 52....................................................................................... 610 K (Croatia) v Home Secretary [2003] UKIAT 00153 ...................................................... 517 KA v Finland [2003] 1 FLR 201..................................................................................127, 721 Kay v Commissioner of Police for the Metropolis [2006] EWHC 1536 ...................... 722 Kay v Lambeth LBC [2006] 2 AC 465 .......................................................................147, 158 Kaydanyuk v SSHD [2006] EWCA Civ 368 ..................................................................... 514 Kingsley v United Kingdom (2001) 33 EHRR 288; (2002) 35 EHRR 177 ............652, 660 Klass v Germany (1978) 2 EHRR 214................................................................................ 700 Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 ...........................371, 776 Köbler v Republic of Austria C-224/01 [2003] ELR I-10239 ........................................ 180 Kola v Secretary of State for Work and Pensions [2007] UKHL 54.............................. 741 König v Germany (1979–80) 2 EHRR 170........................................................................ 637 Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2001] 2 WLR 1789 ..................................................................................................756, 765 Laker Airways Ltd v Department of Trade [1977] QB 643, CA ............................311, 406 Lavender (H) & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231 .................................................................................................................217, 220 Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302, CA........................ 319 Lawal v Northern Spirit Ltd [2004] 1 All ER 187.....................................................653, 654 Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446 ........................... 769 Leach v Money (1765) 19 St Tr 1001 ................................................................................. 750 Lee v Education Secretary (1967) 66 LGR 211 ................................................................. 176 Lee v Showmen’s Guild [1952] QB 329............................................................................. 320 Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 ..................................... 640 Leeds Corporation v Price [2006] UKHL 10 ............................................................158, 159 Letting International Ltd v Newham London Borough Council [2008] EWHC 1583 .................................................................................................................................... 389 Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, CA .............................................................................................................................. 222 Leyland Cars v Vyas [1980] AC 1028, HL ........................................................................ 702 Lianakis: C-532/06 [2008] ECRI–251 ................................................................................ 385

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Table of Cases Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 ............................................................ 370 Lister and others v Hesley Hall Ltd [2001] UKHL 22 ..................................................... 765 Lithgow v UK (1986) 8 EHRR 329..................................................................................... 315 Liversidge v Anderson [1942] AC 206 ............................................... 96, 101, 103, 128, 514 Lloyd v McMahon [1987] 2 WLR 821, HL ....................................................................... 624 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, CA .................................. 654 Local Government Board v Arlidge [1915] AC 120 ................................................573, 622 Lochner v New York 198 US 45 (1905)............................................................................... 32 London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 .... 629 London Underground Ltd v Metronet Rail BCV Ltd and Metronet Rail SSL Ltd [2008] EWHC 502 (TCC) ............................................................................................... 433 Lord Saville of Newdigate and Others v Widgery Soldiers and Others [2002] 1 WLR 1249 ......................................................................................................................... 605 Lujan v Defenders of Wildlife 504 US 555 (1992) ........................................................... 696 Lustig-Prean and Beckett v UK (1999) 29 EHRR 493 .............................................116, 117 Lynch v Pensions Ombudsman [1997] 1 All ER 214 ..............................................482, 483 M v Home Office [1994] AC 377, HL.........................................10, 342, 670, 678, 705, 709 Maaouia v France (2001) 33 EHRR 1037 .......................................................................... 637 McCann v UK(1995) 21 EHRR 97 ..................................................................................... 610 McEldowney v Forde [1971] AC 632 .................................................................................. 96 McGonnell v United Kingdom [2000] 30 EHRR 289 ..................................................... 652 McInnes v Onslow Fane [1978] 3 All ER 211...........................................................625, 626 Malone v United Kingdom, Application 8691179 (1984), ECtHR ............................... 463 Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 64; [2003] UKHL 66 ......... 315, 718, 753, 764 Marshall v Southampton and South-West Hampshire Health Authority (Marshall (No 2): C-271/91, [1993] ECR I-4367 ........................................................................... 775 Mass Energy Ltd v Birmingham CC [1994] Env LR 298 ................................................ 374 Matthews v Ministry of Defence (2003) UKHL 4............................................................ 751 Maxwell v Department of Trade and Industry [1974] Ch 523 ...................................... 591 MB, Re [2006] EWHC Admin 1000, revsd on appeal sub nom Secretary of State for the Home Department v MB [2006] EWCA 1140, CA; affmd [2007] UKHL 46, HL .......................................................................................132, 133, 157, 158, 626, 638 Medicaments, Re [2001] 1 WLR 700 ................................................................................. 654 Meerabux v Attorney General of Belize [2005] UKPC 12 .............................................. 654 Mennitto v Italy (2000) 34 EHRR 1122............................................................................. 638 Mercury Communications Ltd v Director General of Telecommunications [1996] 1 WLR 48, HL ..................................................................................................... 313 Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 1 WLR 521 ...................................................................................................................................... 376 Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93 .................... 752 Metallgesellschaft and Hoechst v Inland Revenue Commissioners: Joined cases C-397, C-410/98, [2001] ECR I-1727 ............................................................................ 776 Metropolitan Properties Co v Lannon [1969] 1 QB 577 ................................................ 653 Metronet Rail BCV Ltd and Metronet Rail SSL Ltd, In the matter of (2007) 28 July ..................................................................................................................................... 434

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Table of Cases Metronet Rail BCV Ltd and Metronet Rail SSL Ltd, In the matter of (2008) 23 May .................................................................................................................................... 435 Minister of National Revenue v Wrights’ Canadian Ropes [1947] AC 109................. 630 Minister for Immigration and Multicultural Affairs, ex p Applicant S20/2002, Re (2003) 198 ALR 59 ........................................................................................................... 511 Mitchell v Glasgow City Council [2009] UKHL 11 .................................................763, 770 Mosley v News Group Newspapers Ltd [2008] EWHC 687 .......................................... 772 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 ........................................ 463 Mostyn v Fabrigas (1774) 1 Cowp 161 .............................................................................. 750 Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346 ....693, 715 Moyna v Work and Pensions Secretary [2003] UKHL 44.............................................. 525 Mullins v McFarlane [2006] EWHC 986 ..................................................................320, 684 Musgrave v Pulido (1879) 5 App Cas 102......................................................................... 750 N v Home Secretary [2005] 2 AC 296 ...................................................................... 127, 721 Nagle v Fielden [1966] 2QB 663......................................................................................... 320 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 ...................................................... 114 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 ............................... 22 Newbury District Council v Environment Secretary [1980] 2 WLR 379, HL ............. 199 New South Wales v Bardolph [1934] 52 CLR 455 ........................................................... 342 New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466 ...................................................................................................................................... 716 Nottinghamshire County Council v Environment Secretary [1986] AC 240, HL ...... 115 OBG Ltd v Allan [2007] UKHL 21 .................................................................................... 463 OFCOM v Floe Telecom Ltd [2006] EWCA Civ 768...................................................... 321 Office of Fair Trading v IBA Health Ltd [2004] 4 All ER 1103 ...................................... 322 Officer L, Re [2007] UKHL 36 ............................................................................................ 605 O’Reilly v Mackman [1983] 2 AC 237, HL ........................19, 511, 680, 681, 684, 705, 743 O’Rourke v Camden LBC [1997] 3 WLR 86 .............................................................226 764 Osman v United Kingdom (1998) 29 EHRR 245 ....................................................770, 772 Othman (Jordan) v Home Secretary [2008] EWCA Civ 290 ......................................... 131 Oxfordshire County Council v Oxford City Council [2006] UKHL 25 ....................... 726 P, Re [2008] UKHL 38 .................................................................................................136, 137 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, HL ......101, 102, 103, 106, 176, 206, 231, 632, 633, 704, 709, 729 Paul v Chief Constable of Humberside [2004] EWCA Civ 308 .................................... 758 Paul and Ors v Deputy Coroner of the Queen’s Household and Anor [2007] EWHC 408 (Admin) ....................................................................................................... 577 Pascoe v First Secretary of State [2007] 1 WLR 885 ........................................................ 639 Payne v Lord Harris of Greenwich [1981] 1 WLR 754, CA ........................................... 640 Pearlman v Keepers and Governors of Harrow School [1979] QB 56, CA.................. 510 Pepper (Inspector of Taxes) v Hart [1993] AC 593, HL· ................................................ 146 Pergamon Press, Re [1971] Ch 388.................................................................................... 591 Persimmon Homes v R (Lewis) [2008] EWCA Civ 746 ................................................. 658 Pfizer: T-13/99 [2002] ECR II-3305, CFI .......................................................................... 270

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Table of Cases Phelps v Hillingdon BC [2000] 3 WLR 766 ...................................................................... 767 Philips v Eyre (1867) LR 4 QB 225..................................................................................... 750 Pickin v British Railways Board [1974] AC 765............................................................... 146 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48..................................................................................................................... 379 Porter v Magill [2002] AC 357 ...........................................................................638, 654, 658 Poyser and Mills’ Arbitration, Re [1963] 1 All ER 612 ................................................... 634 Practice Direction: Administrative Court [2000] 1 WLR 1654 ..................................... 683 Practice Direction (Administrative Court: Uncontested Proceedings) [2008] 1 WLR 1377 ......................................................................................................................... 717 Pretty v United Kingdom (2002) 35 EHRR 1 ................................................................... 635 Procurator Fiscal, Linlithgow v Watson [2004] 1 AC 379.............................................. 638 Puhlhofer v Hillingdon London Borough Council [1986] AC 484, HL ...............688, 689 Pullar v United Kingdom (1996) 22 EHRR 391............................................................... 654 Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, HL ................................................................................................................................ 26 R v Amber Valley DC, ex p Jackson [1984] 3 All ER 501 ............................................... 657 R v Aston University Senate, ex p Roffey [1969] 2 QB 538 ............................................ 724 R v Barnsley Licensing Justices, ex p Barnsley and District Licensed Victuallers’ Association [1960] 2 QB 167 .......................................................................................... 653 R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052, CA ..... 374 R v Birmingham CC, ex p Equal Opportunities Commission [1989] AC 1155 .......... 215 R v Board of Visitors of HM Prison, The Maze, ex p Hone [1988] AC 379, HL ........ 628, 639 R v Board of Visitors of Hull Prison, ex p St Germain [1979] QB 425, CA ................. 640 R v Boundary Commission for England, ex p Foot [1983] QB 600, CA ...................... 100 R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, HL................................................................................................654, 703 R v Brent LBC, ex p Gunning (1985) 84 LGR 168 ........................................................... 649 R v Brent LBC, ex p Walters (1998) 30 HLR 328, CA ..................................................... 650 R v British Coal Corpn, ex p Vardy [1993] ICR 720 ....................................................... 648 R v British Waterways Board v First Secretary of State [2006] EWHC 1019 .............. 648 R v C [2004] UKHL 3 .......................................................................................................... 705 R v Cannings [2004] EWCA Crim 1 ................................................................................. 769 R v Chief Constable of Merseyside Police, ex p Calveley [1986] QB 424, CA ............. 688 R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1998] 3 WLR 1260 ......................................................................................................................... 718 R v Chief Constable of West Midlands Police, ex p Wiley [1995] 1 AC 274, HL ....... 705 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann [1992] 1 WLR 1036 ............................................. 318 R v City of London Corporation, ex p Matson [1997] 1 WLR 765 ............................... 633 R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310, CA ......632, 638 R v Commission for Racial Equality, ex p Westminster City Council) [1985] ICR 827 ...................................................................................................................................... 215 R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All ER 1033 ......................................................................................... 482

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Table of Cases R v Coventry Airport, ex p Phoenix Aviation [1995] 3All ER 37 .................................. 702 R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 33....................512, 513 R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864 ............... 12, 780 R v Criminal Injuries Compensation Board, ex p Schofield [1971] 1 WLR 926 ........ 780, 781 R v Customs and Excise Comrs, ex p Cooke and Stevenson (or ex p Cook) [1970] 1 WLR 450, DC ................................................................................................................ 191 R v Deputy Governor of Parkhurst Prison, ex p Hague [1991] 3 WLR 340 ................ 750 R v Derbyshire County Council, ex p Noble [1990] ICR 808, CA ................................ 374 R v Director of Passenger Rail Franchising, ex p Save Our Railways (1995) Times, 18 December, CA ............................................................................................................. 405 R v Director-General of Electricity Supply, ex p Scottish Power plc (3 February 1997, unreported) ............................................................................................................ 313 R v Director-General of Gas Supply, ex p Smith (31 July 1989, unreported) .............. 311 R v Director-General of Telecommunications, ex p Let’s Talk (UK) Ltd (6 April 1992, unreported) ............................................................................................................ 311 R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909, CA ......................................................................................................................319, 684 R v DPP, ex p Kebilene [2000] AC 326, HL...................................................................... 137 R v East Berkshire Health Authority, ex p Walsh [1985] QB 152, CA ......................... 317 R v East Sussex County Council, ex p A [2003] EWHC 167.......................................... 736 R v East Sussex County Council, ex p Tandy [1998] AC 714, HL........ 127, 720, 721, 728 R v Electricity Commissioners [1924] KB 171, CA ......................................................... 509 R v Employment Secretary, ex p EOC and Day [1994] 2 WLR 409, HL ...................... 698 R v Environment Secretary, ex p Challenger [2001] Env LR 12 .................................... 639 R v Environment Secretary, ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521, HL......................................................................................... 115 R v Environment Secretary, ex p Haringey London Borough Council (1994) 92 LGR 538, CA ..................................................................................................................... 361 R v Environment Secretary, ex p Islington LBC [1992] COD 67 .................................. 707 R v Environment Secretary, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 ...................................................................................................................................... 657 R v Environment Secretary, ex p Rose Theatre Trust Co [1990] 1 QB 504.................. 699 R v Environment Secretary, ex p Spath Holme [2001] 2 AC 349, HL .......................... 147 R v Felixstowe Justices, ex p Leigh [1987] QB 582 ..................................................697, 698 R v Foreign Secretary, ex p Rees-Mogg [1994] 1 All ER 457..................................113, 698 R v Foreign Secretary, ex p World Development Movement Ltd [1995] 1 All ER 611 ..............................................................................................................................699, 706 R v Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 All ER 528, CA .............................................................................................................................. 625 R v Gloucestershire County Council, ex p Barry [1997] 2 All ER 1 .............719, 720, 722, 728, 729 R v Gough [1993] AC 646 ...................................................................................653, 654, 656 R v Governor of Brockhill Prison, ex p Evans (No 1) [1997] QB 443 .......................... 756 R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19 ......................... 756 R v Greater London Council, ex p Blackburn [1976] 1 WLR 550, CA ......................... 696 R v H [2004] UKHL 3 .......................................................................................................... 705

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Table of Cases R v Halliday [1917] AC 260 ................................................................................................ 514 R v Hammersmith and Fulham London Borough Council, ex p Beddowes [1987] 2 WLR 263, CA ........................................................................................................372, 658 R v Health Secretary, ex p United States Tobacco International Inc [1982] QB 353 ..................................................................................................................................... 222 R v Hereford Corpn, ex p Harrower [1970] 1 WLR 1424 .............................................. 374 R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242............................................................................................................631, 633, 635 R v HM Treasury, ex p British Telecommunications plc: C-392/93 [1996] 3 WLR 203, ECJ ............................................................................................................................. 775 R v Home Secretary, ex p Amin [2003] UKHL 51........................................................... 612 R v Home Secretary, ex p Anufrijeva [2003] EWCA 1406; [2003] UKHL 36 ............ 193, 209–12, 217, 772, 773 R v Home Secretary, ex p Asif Khan [1985] 1 All ER 40 ................................................ 223 R v Home Secretary, ex p Brind [1991] 1 AC 696, HL ....................................113, 114, 116 R v Home Secretary, ex p Cheblak [1991] 1 WLR 890, CA............................................ 626 R v Home Secretary, ex p Darendranath Doorga [1990] COD 109 .............................. 689 R v Home Secretary, ex p Doody [1993] 3 WLR 154, HL .................... 624, 625, 628, 633, 636, 637, 640 R v Home Secretary, ex p Fayed [1997] 1 All ER 228, CA.............................................. 634 R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513, [1995] 2 WLR 464, HL ................................................................................................. 11, 13, 145, 729, 781 R v Home Secretary, ex p Greenfield [2005] UKHL 14 .................................................. 773 R v Home Secretary, ex p Hargreaves [1997] 1 All ER 397, CA .................................... 228 R v Home Secretary, ex p Hosenball [1977] 1 WLR 766, CA ................................514, 626 R v Home Secretary, ex p Jeyeanthan [2000] 1 WLR 354, CA ...............................629, 636 R v Home Secretary, ex p Launder [1997] 1 WLR 839, HL............................................ 512 R v Home Secretary, ex p Leech [1994] QB 198, CA....................................................... 758 R v Home Secretary, ex p Salem [1999] 1 AC 450, HL ................................................... 722 R v Home Secretary, ex p Simms [2000] 2 AC 115, HL ................ 114, 118, 119, 512, 643, 730, 758 R v Home Secretary, ex p Sivakumaran [1988] AC 958, HL .......................................... 702 R v Home Secretary, ex p Swati [1986] 1 WLR 477, CA .................................686, 687, 713 R v Home Secretary, ex p Tarrant [1985] QB 251 ...................................................625, 627 R v Home Secretary, ex p Venables [1997] 3 All ER 97, HL .......................................... 702 R v Independent Television Commission, ex p TSW Broadcasting Ltd [2006] EMLR 291, HL..........................................................................................................397, 690 R v Independent Television Commission, ex p Virgin Television Ltd [1996] EMLR 318 ......................................................................................................................... 397 R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329 ........ 698 R v IRC, ex p National Federation of Self-Employed, [1980] QB 407, CA; on appeal sub nom IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, HL .................................................................................. 98 R v IRC, ex p Preston [1985] AC 835 ................................................................................ 224 R v IRC, ex p Taylor [1989] 1 All ER 906.......................................................................... 705 R v IRC, ex p Unilever plc [1996] STC 681, CA .............................................................. 224 R v IRC, ex p Wilkinson [2005] UKHL 30 ....................................................................... 778

xxxii

Table of Cases R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772 ............................................. 14 R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 ............................................. 706 R v Legal Aid Board, ex p Donn & Co (a firm) [1996] 3 All ER 1 ................................. 374 R v Legal Aid Board, ex p Hughes, The Times, 29 October 1992 .................................. 689 R v Lewisham London Borough Council, ex p Shell UK Ltd [1988] 1 All ER 938 ........................................................................................................................84, 363, 374 R v Liverpool Corpn, ex p Liverpool Taxi Fleet Operators’ Association (1972), CA ..............................................................................................................................176, 222 R v Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan City Council [1979] QB 287, CA ................. 482 R v Local Commissioner for Administration for the South, the West, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire, ex p Eastleigh Borough Council [1988] QB 855, CA ........................................................................... 482 R v London Borough of Enfield, ex p T F Unwin (Roydon) Ltd [1989] COD 466 ..... 374 R v London Borough of Islington, ex p Building Employers’ Confederation [1989] IRLR 382 ............................................................................................................... 363 R v London Transport Executive, ex p Greater London Council [1983] 1 QB 484, [1983] 2 WLR 702 ....................................................................................................105, 731 R v Lord Chancellor, ex p Hibbit and Saunders (a firm) [1993] COD 326 ..........374, 375 R v Lord Chancellor, ex p Witham [1997] 2 All ER 779 ...................................26, 114, 685 R v Lord Chancellor’s Department, ex p Nangle [1992] 1 All ER 897 .......................... 342 R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 ............................................ 605 R v Lord Saville of Newdigate, ex p B (No 2) [2000] 1 WLR 1855 ................................ 605 R v Merseyside County Council, ex p Great Universal Stores Ltd (1982) 80 LGR 639 ...................................................................................................................................... 731 R v Ministry of Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714 ..........................................................................224, 225 R v Ministry of Defence, ex p Murray [1998] COD 134 ................................................. 633 R v Ministry of Defence, ex p Smith and others [1996] 1 All ER 257, CA ....114, 115, 145 R v Ministry of Defence, ex p Walker [2000] 1 WLR 806 .............................................. 229 R v Monopolies and Mergers Commission, ex p Argyll Group plc [1986] 1 WLR 763, CA ..............................................................................................................312, 697, 724 R v Monopolies and Mergers Commission, ex p Stagecoach plc, The Times 23 July 1996 ............................................................................................................................ 312 R v Nat Bell Liquors [1922] 2 AC 128 ............................................................................... 631 R v National Lottery Commission, ex p Camelot [2001] EMLR 43 ......................398, 645 R v North and East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622 ......................................................................224, 226–28, 379, 649, 650, 691, 719, 764 R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338 ...................................................................................................................................... 510 R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815, CA ............. 312, 317–20, 378, 683, 723, 724 R v Panel on Take-overs and Mergers, ex p Guinness plc [1990] 1 QB 146, CA ........ 689 R v Parliamentary Commissioner for Administration, ex p Balchin and others [1996] EWHC Admin 152; [1999] EWHC Admin 484......................................482, 562 R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 All ER 375 ...................................................................................................................................... 563

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Table of Cases R v Rent Officer Service, ex p Muldoon [1996] 1 WLR 1103, HL ................................. 702 R v Secretary of State for Work and Pensions, ex p Hooper [2005] UKHL 29 ........... 778 R v Securities and Futures Authority, ex p Panton (20 June 1994, unreported) ......... 312 R v Servite Houses and Wandsworth LBC, ex p Goldsmith and Chatting (2000) 2 LGLR 997 ....................................................................................................................... 379 R v Shayler [2002] UKHL 11 .............................................................................................. 119 R v Social Fund Inspector, ex p Stitt [1990] COD 288 .................................................... 729 R v Social Security Secretary, ex p Joint Council for the Welfare of Immigrants [1996] 4 All ER 385, CA ......................................................................... 114, 115, 144, 740 R v Social Services Secretary, ex p Association of Metropolitan Authorities [1986] 1 WLR 1 ................................................................................................648, 650, 727 R v Social Services Secretary, ex p Child Poverty Action Group [1990] 2 QB 540 ..... 698 R v Social Services Secretary, ex p Child Poverty Action Group The Times, 16 August 1984 ...................................................................................................................... 698 R v Somerset CC, ex p Dixon [1998] Env LR 111 ............................................................ 697 R v Somerset CC, ex p Fewings [1995] 1 WLR 1037, CA ................................................. 84 R v Soneji [2005] UKHL 49 ........................................................................................629, 636 R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319, CA ........ 690 R v Sussex CC, ex p Reprotech (Pebsham) Ltd [2003] 1 WLR 348, HL ....................... 229 R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 ...................................................... 653 R v Trade Secretary, ex p Lonrho plc [1989] 1 WLR 525 ............................................... 632 R v Transport Secretary, ex p Factortame (No 1) [1989] 2 WLR 997 ........................... 181 R v Transport Secretary, ex p Factortame (No 2) C-213/89 [1990] ECR I-2433, HL .................................................................................................... 180, 390, 678, 679, 775 R v Transport Secretary, ex p Factortame (No 4): C-48/93 [1996] ECR I-1029, ECJ ..................................................................................................................................... 775 R v Transport Secretary, ex p Factortame (No 5) [1997] EuLR 475 (Div Court); affd [1999] 3 WLR 1062, HL .......................................................................................... 775 R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302 .............................. 635 R v Westminster City Council, ex p M (1997) 1 CCLR 85 .....................................740, 741 R v Wicks [1997] 2 All ER 801, HL .................................................................................... 682 R (A) v Partnerships in Care Ltd [2002] 1 WLR 2610 .................................................... 378 R (Adlard) v Environment Secretary [2002] 1 WLR 1515, CA ..................................... 638 R (Ahmad) v Newham LBC [2009] UKHL 14 .........................................................218, 719 R (Alconbury Ltd) v Environment Secretary [2001] 2 WLR 1389, HL ...............512, 638, 661, 662 R (Al Fayed) v Assistant Deputy Coroner of Inner West London [2008] EWHC 713 Admin ........................................................................................................................ 577 R (Al–Hasan) v Home Secretary [2005] 1 WLR 688 ....................................................... 655 R (Al-Jedda) v Defence Secretary [2007] UKHL 58, [2008] 2 WLR 31, HL ......... 15, 671 R (AM) v Secretary of State for the Home Department [2009] EWCA Civ 219 ......... 610 R (Amin (Imtiaz)) v Home Secretary [2001] EWHC Admin 719, revsd [2002] EWCA Civ 390, revsd [2003] UKHL 51 ...............................................................611, 612 R (Anderson) v Home Secretary [2002] UKHL 46.......................................................... 641 R (Animal Defenders International) v Culture, Media and Sport Secretary [2008] UKHL 15 ........................................................................................................................... 148 R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 ..............645–47

xxxiv

Table of Cases R (Bancoult) v Foreign Secretary (No 2) [2006] EWHC Admin 1038; [2007] EWCA Civ 498 (CA); [2008] UKHL 61.................................................................. 14, 141 R (Bancoult) v Foreign Secretary [2001] 1 QB 1067 (Bancoult (No 1) .......................... 14 R (Bapio Action) v Home Secretary [2007] EWCA Civ 1139; [2008] UKHL 27 ....... 176, 617, 648 R (Beer) v Hampshire Farmers Markets Ltd [2004] 1 WLR 233, CA ........................... 320 R (Begbie) v Department of Education and Employment [1999] EWCA Civ 2100 .................................................................................................................................... 229 R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 see R (SB) v Headteacher and Governors of Denbigh High School R (Bernard) v Enfield LBC [2002] EWHC 2282 ......................................................772, 784 R (Bewry) v Norwich City Council [2001] EWHC Admin 657 ............................653, 665 R (Bhatt Murphy) v Independent Assessor [2008] EWCA 755.............................229, 230 R (Bibi and Al-Nashid) v Newham LBC [2002] 1 WLR 237..........................225, 226, 723 R (Binyam Mohamed) v Foreign Secretary [2009] EWHC 152 .................................... 705 R (Black) v Secretary of State for Justice [2009] UKHL 1............................................... 641 R (Bradley) v Work and Pensions Secretary [2007] EWHC 242; rvsd in part [2008] EWCA 36 ......................................................................................................559, 564 R (Brooke) v Parole Board [2008] 1 WLR 1950 .......................................................659, 660 R (Buglife – The Invertebrate Conservation Trust) v Thurrock Th ames Gateway Development Corpn [2008] EWCA Civ 1209 ............................................................. 716 R (Burke) v General Medical Council [2005] EWCA Civ 1003 ....................703, 725, 726 R (Burkett) v Environment Secretary [2002] UKHL 23 ................................................. 690 R (C) v Secretary of State for Justice [2008] EWCA Civ 882 ......................................... 726 R (Capenhurst) v Leicester City Council [2004] EWHC 2124 ...................................... 648 R (Centro) v Transport Secretary [2007] EWHC 2729................................................... 314 R (Chief Constable of Lancashire) v Preston Crown Court [2001] EWHC Admin 928 ...................................................................................................................................... 637 R (City of Westminster and Others) v Mayor of London [2002] EWHC 244 ............ 700 R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749 ........................ 716 R (Cookson and Clegg) v Ministry of Defence [2005] Eu LR 517.........................375, 390 R (Corner House Research) v Director of the SFO [2008] EWHC Admin 714, [2008] UKHL 60................................................................................................................. 14 R (Corner House Research) v Trade and Industry Secretary [2005] 1 WLR 2600 ..... 716 R (Countryside Alliance) v Attorney-General [2007] UKHL 52.......... 113, 145, 677, 678 R (Cowl) v Plymouth City Council [2002] 1 WLR 803 ..................................676, 691, 692 R (D) v Home Secretary [2003] EWHC 155..................................................................... 635 R (Daly) v Home Secretary [2001] 2 AC 532; [2001] UKHL 26 ............ 114, 118–20, 126, 640, 677, 758 R (Edwards) v Environment Agency [2006] EWCA Civ 877; [2008] UKHL 22........ 651, 677, 723 R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438 .................................................................................................314, 627, 648 R (Elias) v Defence Secretary [2005] EWHC 1435 Admin; [2006] EWCA Civ 1293 ............................................................................................................................678, 787 R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 AC 1 ............................................................... 14, 213–15, 718

xxxv

Table of Cases R (FH) v Home Secretary [2007] EWHC 1571 ................................................................ 638 R (Ford) v Press Complaints Commission [2001] EWHC 683 (Admin)..................... 467 R (Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803 .............. 650 R (G) v Barnet LBC [2003] 3 WLR 1194 ...................................................................127, 721 R (G) v Immigration Appeal Tribunal [2004] 1 WLR 2953 ........................................... 519 R (Gamesa Energy UK Ltd) v National Assembly for Wales [2006] EWHC 2167 (Admin).....................................................................................................................375, 376 R (Gentle and Clarke) v Prime Minister and Others [2008] UKHL 20 .................. 14, 603 R (Gilboy) v Liverpool CC [2008] EWCA Civ 751.......................................................... 666 R (Gillan) v MPC [2006] UKHL 12 ............................................................ 83, 208, 215, 718 R (Great North Eastern Railway Ltd) v Rail Regulator [2006] EWHC 1942 .......314, 322 R (Greenpeace) v Industry Secretary [2007] EWHC 311 ...................... 152, 177, 617, 648 R (Gurung and Others) v Defence Secretary [2008] EWHC 1496 (Admin) ............... 787 R (Hadfield) v Secretary of State for Transport, Local Government and the Regions [2002] 26 EGCS 137.......................................................................................... 639 R (Hammer Trout Farm) v Hampshire Farmers Markets Ltd [2003] EWCA Civ 1056 .................................................................................................................................... 380 R (Hasan) v Trade and Industry Secretary [2007] EWHC 2630, [2008] EWCA Civ 1311.....................................................................................................................631, 700 R (Haw) v Home Secretary [2006] 3 WLR 40, CA ............................................................ 83 R (Heather) v Leonard Cheshire Foundation (2002) 2 All ER 936 ...............365, 379, 380 R (Iran) v Home Secretary [2005] EWCA Civ 982.......................................................... 513 R (Kaur and Shah) v Ealing LBC [2008] EWHC 2062 .................................................... 726 R (Kilby) v Basildon DC [2006] EWHC 1892 (Admin) ................................................. 372 R (Law Society) v Legal Services Commission [2007] EWCA Civ 1264 ...................... 389 R (Limbuela) v Home Secretary [2004] 3 WLR 561, CA; [2005] 3 WLR 1014, HL ................................................................................................................... 738, 740, 745, 747 R (London and Continental Stations & Property Ltd) v Rail Regulator [2003] EWHC 2607 ...................................................................................................................... 314 R (Lynch) v General Dental Council [2004] 1 All ER 1159............................................ 707 R (M) v Inner London Crown Court [2003] EWHC 301 ............................................... 353 R (Menai Connect Ltd) v Department for Constitutional Affairs [2006] EWHC 727 (Admin) ..................................................................................................................... 375 R (Ministry of Defence) v HM Coroner for Wiltshire and Swindon [2005] EWHC 889 ........................................................................................................................ 707 R (Molinaro) v Kensington LBC [2001] EWHC Admin 896......................................... 374 R (Mullins) v Jockey Club [2005] EWHC 2197 ...................................... 319, 320, 380, 684 R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 ............................................... 746 R (N) v M [2003] 1 WLR 562 ............................................................................................. 709 R (Nadarajah and Abdi) v Home Secretary [2005] EWCA Civ 1363 ...................229, 678 R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 ................. 635 R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 .......................................................................................................................707, 708 R (PG) v Ealing LBC [2002] EWHC 250 .......................................................................... 706 R (Phalam Gurung) v Ministry of Defence [2002] EWHC 2463 (Admin) .................. 787 R (Prokopp) v London Underground Ltd [2004] Env LR 170 ...................................... 708 R (Q) v Home Secretary [2003] 3 WLR 365 .................................... 665, 740, 741, 743, 746

xxxvi

Table of Cases R (Q) v Home Secretary [2003] EWHC 2507 ..........................................................743, 744 R (Quark Fishing Ltd) v Foreign Secretary [2001] EWHC 1174 affd sub nom Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing [2002] EWCA Civ 1409 ..........................................................................................626, 706 R (Quark Fishing Ltd) v Foreign Secretary [2006] 1 AC 529 ................................... 14, 626 R (Quintavelle) v Human Fertilisation and Embryology Authority [2005] 1 WLR 1061, HL ............................................................................................................................ 699 R (Rashid) v Home Secretary [2005] EWCA Civ 744 .....................................228, 230, 232 R (Redcar and Cleveland BC) v Business Secretary [2008] EWHC 1847..................... 691 R (Roberts) v Parole Board [2008] EWHC 2714 ............................................................. 643 R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392 .............123–26, 719, 765 R (S, M, S and Others) v Secretary of State for the Home Department [2006] EWHC 1111 (Admin) .............................................................................................134, 212 R (SB) v Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199 revsd sub nom R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 .........................................................121, 122, 125, 718, 728, 735 R (Smith and West) v Parole Board [2005] UKHL 1 ............................. 625, 636, 641, 642 R (Smith) v Assistant Deputy Coroner for Oxfordshire & Anor [2008] EWHC 694 (Admin) ..................................................................................................................... 577 R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] EWCA Civ 1019 .................................................................................................................................... 648 R (Smith) v Parole Board [2003] 1 WLR 2548, CA ......................................................... 687 R (Spink) v Wandsworth LBC [2005] EWCA Civ 302 ...................................127, 721, 722 R (SRM Global Master Fund) v HM Treasury [2009] EWHC 227 ............................... 315 R (T) v Home Secretary [2003] EWCA 1285 ...................................................742, 743, 745 R (Thangarasa and Yogathas) v Home Secretary [2002] UKHL 36 .............................. 116 R (Transport for London) v London Regional Transport (2001) unreported, 30 July ..................................................................................................................................... 427 R (Tucker) v Director General of the National Crime Squad [2003] ICR 599 ............ 318 R (Ullah) v Special Adjudicator [2004] UKHL 26 ........................................................... 136 R (W and PW) v Metropolitan Police Commissioner and Richmond LBC [2006] EWCA Civ 458 ................................................................................................................... 83 R (Wainwright) v Richmond LBC [2001] EWCA Civ 2062 .......................................... 650 R (Walker) v Secretary of State for Justice [2008] 1 WLR 1977 .................................... 659 R (Wandsworth LBC) v Transport Secretary [2005] EWHC 20 ................................... 706 R (Watts) v Bedford Primary Care Trust and Health Secretary: Case C-372/04 [2006] ECR I-4325, ECJ .................................................................................................... 90 R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 .............380, 382 R (Wheeler) v Prime Minister [2008] EWHC 1409 .......................................................... 15 R (Wooder) v Feggetter [2002] EWCA Civ 554 .............................................................. 635 R (Wright) v Health Secretary [2008] 2 WLR 536 (CA); [2009] UKHL 3 ................... 665 Racal Communications Ltd, Re [1981] AC 374, HL ....................................................... 510 Railtrack Plc v Guinness Ltd [2003] EWCA Civ 188 ...................................................... 512 Raymond v Honey [1982] 2 WLR 465, HL....................................................................... 640 RB (Algeria) and OO (Jordan) v Home Secretary [2009] UKHL 10 ............................ 131 Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 .......................................342, 345, 371

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Table of Cases Reeman v DoT and Others [1997] 2 Lloyds Rep 648 ...................................................... 531 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein: 120/78 [1979] ECR 649, ECJ .................................................................................................................... 277 Ridge v Baldwin [1964] AC 40, HL...................100, 115, 617, 622–24, 628, 638, 644, 657, 666, 680 Ringeisen v Austria (1979–80) 1 EHRR 455..................................................................... 637 Roberts v Hopwood [1925] AC 578, HL ........................................................................... 105 Roberts v Parole Board [2005] 2 AC 738 ........................................................... 624, 642–44 Robertson v Minister of Pensions [1948] 1 KB 227 ........................................................ 345 Robins and Others v Work and Pensions Secretary C-278/05 [2007] ELR I-1053, ECJ ..................................................................................................................................... 560 Rookes v Barnard [1964] AC 1129 .................................................................................... 756 Rowland v Environment Agency [2003] EWCA Civ 1885 ............................................ 223 Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624, HL........................................................................................................ 682 Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, HL ................................................................................ 722 Rudolph Wolff & Co Ltd and Noranda Inc v The Crown [1990] 1 SCR 695, 69 DLR (4th) 392 (Can) ......................................................................................................... 20 Russell v Duke of Norfolk [1949] 1 All ER 109, CA ........................................................ 624 S and Marper v United Kingdom [2008] ECHR 1581, ECtHR ....................................... 79 Saadi v Italy [2008] ECHR 179; App no 37201/06, 28 Feb 2008, ECtHR .............130, 132 Salesi v Italy (1998) 26 EHRR 187...................................................................................... 638 Save Britain’s Heritage v Environment Secretary and others [1991] 1 WLR 153, [1991] 2 All ER 10, HL ............................................................................................584, 634 Schechter Poultry Group v United States 295 US 528 (1935) .......................................... 32 Schmidt v Home Secretary [1969] 2 WLR 337, CA ........................................................ 623 Science Research Council v Nassé [1980] AC 1028, HL ................................................. 702 Secretary of State for the Home Department v AF, AM and AN [2008] EWCA Civ 1148............................................................................................................................. 626 Secretary of State for the Home Department v JJ and others [2006] EWCA Civ 1141 affmd [2007] UKHL 45 ..................................................................................132, 133 Secretary of State for the Home Department v Rehman [2001] 1 UKHL 47.......134, 718 Secretary of State for the Home Department v R (S) [2007] EWCA Civ 546......231, 639 Secretary of State for the Home Department v Tatar [2000] 00TH01914 ................... 512 Seifert v Pensions Ombudsman [1997] 1 All ER 214 ..............................................482, 483 Serco v Lawson [2006] UKHL 3 ......................................................................................... 525 Shaheen v Secretary of State for the Home Department [2005] EWCA Civ 1294...... 514 Sharma v Brown-Antoine [2006] UKPC 57 ..................................................................... 689 Short v Poole Corporation [1926] Ch 26 ............................................................................ 42 Sierra Club v Morton 405 US 727 (1972).......................................................................... 696 Silver v United Kingdom (1983) 5 EHRR 347 ................................................................. 119 Smith and Grady v UK (1999) 29 EHRR 548 .............................................................116–19 Somerville and Others v Scottish Ministers [2007] UKHL 44 ......................................... 89 South East Asia Fire Bricks v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 (PC)......................................................................... 510

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Table of Cases Stadt Halle: C-26/03 [2005] I-1 .......................................................................................... 391 Stafford v United Kingdom (2002) 35 EHRR 1121 .................................................640, 659 Steel and Morris v United Kingdom (2005) 41 EHRR 403 ............................................ 639 Stefan v General Medical Council [1999] 1 WLR 1293 ..........................................631, 638 Stovin v Wise [1996] AC 923, HL ...................................................................................... 762 Stretch v UK (2004) 38 EHHR 12 ...................................................................................... 223 Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281.............. 371 Subesh v SSHD [2004] EWCA Civ 56 .......................................................................513, 514 Sugar v BBC [2009] UKHL 9 .............................................................................................. 463 Taylor v Lawrence [2003] QB 528 ..................................................................................... 656 Tekle v Home Secretary [2008] EWHC 3064 ................................................................... 739 Telaustria: C-324/98 [2000] ECR I-10745 ........................................................................ 385 Tesco plc v Competition Commission [2009] CAT 6 ..................................................... 322 Thoburn v Sunderland City Council [2002] 3 WLR 247 ................................................ 182 Three Rivers District Council v Bank of England [2000] 2 WLR 1220 ........759, 761, 775 Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, ECtHR ....... 640 Town Investments Ltd v Department of the Environment [1978] AC 359, HL ......... 342 TP and KM v UK, App 2894/95 (10 May 2000) .............................................................. 786 Transocean Marine Paint v Commission 17/74 [1974] ECR 1063 ............................... 617 Trent Strategic Health Authority v Jain [2009] UKHL 4................................................ 761 Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 308 ............................................. 637 Tsfayo v UK [2006] ECHR 981, [2007] HLR 19 ............................................... 457, 664–67 Turner v Environment Secretary (1973) 28 P & CR 123 ................................................ 696 Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 ...............708, 709 UniChem v Office of Fair Trading [2005] CompAR 907 ............................................... 322 Van Colle v Chief Constable of Hertfordshire; Smith v Chief Constable of Sussex [2007] EWCA Civ 325 (CA); [2008] UKHL 50 (HL) ................................................. 770 Van Duyn v Home Office: 41/74 [1974] ECR 1337, ECJ ................................................ 180 Van Gend en Loos NV v Nederlandse Administrie der Belastingadministratie: 26/62 See Algemene Transport-en Expeditie Onderneming van Gend en Loos NV v Nederlandse Belastingadministratie: 26/62 Vermont Yankee Nuclear Power Corpn v NRDC 435 US 519 (1978) ......................... 311 VgT Verein gegen Tierfabriken v Switzerland (2001) 34 EHRR 159 ........................... 148 W v Essex County Council [2001] 2 AC 592.................................................................... 768 Wainwright v Home Office [2003] 3 WLR 1137 .....................................................758, 771 Wainwright v United Kingdom, App No 12350/04 (Judgment of 26 Sep 2006) ........ 772 Wandsworth London Borough Council v Winder [1985] AC 461, HL ....................... 682 Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 ................................... 629 Watkins v Home Office [2006] UKHL 16.........................................................758, 759, 772 Watson v British Boxing Board of Control [2001] 2 WLR 1256 ................................... 761 Watt v Kesteven CC [1955] 1 QB 408 ............................................................................... 721 Webb v The Queen (1994) 181 CLR 41 (Australia)......................................................... 653 Weeks v United Kingdom (1994) 19 EHRR 333 ............................................................. 640

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Table of Cases Weir v Transport Secretary [2005] EWHC 2192 (Ch) ................................................... 408 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, HL ........................................................................................................... 371 Western Fish Products Ltd v Penrith District Council [1981] 2 All ER 204, CA........ 222 Wheeler v Leicester City Council [1985] 2 All ER 151, CA; [1985] AC 1054, HL ........................................................................................................................84, 114, 363 Wilkes v Wood (1763) 2 Wils KB 203 ............................................................................... 750 Williamson v Education Secretary and Others [2002] EWCA 1926 .............................. 82 Wilson v First County Trust [2003] UKHL 40 ................................................................ 147 Wood v Ealing LBC [1967] Ch 487 ................................................................................... 721 Woolwich Equitable Building Society v Commissioners of Inland Revenue [1993] AC 70.............................................................................................................371, 776 Wright’s Application, Re [2006] NIQB 90........................................................................ 608 Wynne v United Kingdom (1994) 19 EHRR 333 ............................................................ 640 X (Minors) v Bedfordshire County Council; M v Newham London Borough Council [1995] 2 AC 633 ........................................................................................766, 767 YL (by her litigation friend the Official Solicitor) v Birmingham City Council and Others [2007] UKHL 27.................................................... 21, 320, 365, 366, 380–83, 677 Z v United Kingdom (2001) 34 EHRR 97 ................................................ 767, 770, 772, 792 ZT (Kosovo) v Home Secretary [2009] UKHL 6 ............................................................. 516 Zumbotel v Austria (1993) 17 EHRR 116 .................................................................661, 663

Table of Statutes

Abortion Act 1967................................. 163 Access to Justice Act 1999 .................... 715 Act of Union .......................................... 182 Administrative Procedure Act 1946 (USA) ....................170, 192, 201 Agricultural Marketing Act 1958 ........ 101 s 19 ...................................................... 101 Aliens Act 1905 .............................. 514, 515 Aliens Restriction Act 1914 ................. 514 Anti-Social Behaviour Act 2003 .... 82, 352 ss 19, 20–22 ........................................ 353 25 ......................................................... 352 26–28 .................................................. 353 Anti-terrorism, Crime and Security Act 2001 .......................... 128 ss 21, 23............................................... 128 Armed Forces Act 2006 ........................ 614 Asylum and Immigration Act 1996 ........................................ 517, 740 s 1 ........................................................ 516 Asylum and Immigration Appeals Act 1993 ......................................... 516 Sch 2 .................................................... 516 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004........................... 29, 519 s 26 ...................................................... 519 Sch 2 .................................................... 519 Audit Commission Act 1998 ................. 60 Banking Act 1987 s 1(4) ................................................... 761 Banking Act 2009 .................................. 275 Banking (Special Provisions) Act 2008 ................................................ 275 Bank of England Act 1998...................... 66

Bill of Rights (1688) ................13, 146, 182 British Nationality Act 1981 s 44(2) ................................................. 634 Broadcasting Act 1980 .......................... 396 Broadcasting Act 1981 .......................... 396 Broadcasting Act 1990 .................. 396, 397 s 17 ...................................................... 396 Care Standards Act 2000 ...................... 380 Child Maintenance and Other Payments Act 2008 ....................... 549 Child Support Act 1991 .......................... 77 Child Support, Pensions and Social Security Act 2000 .............. 665 Children Act 1989 ................................. 580 s 17 ...................................................... 766 s 17(1) ................................................. 721 81 ......................................................... 595 Children Act 2004 ................................. 598 s 3 ........................................................ 598 Chronically Sick and Disabled Persons Act 1970 s 2 ................................................ 719, 721 s 2(1) ........................................... 719, 720 Civil Aviation Act 1982 ................ 488, 581 Communications Act 2003 ................. 253, 397 s 3 ........................................................ 259 3(4) ...................................................... 255 120–24 ................................................ 333 321(2) .................................................. 148 Competition Act 1998 ..........296, 297, 321 s 54 ...................................................... 297 Sch 10.................................................. 297 Competition and Service (Utilities) Act 1992 ....................... 251

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Table of Statutes Constitutional Reform Act 2005 .......... 19, 111, 135, 653 s 3 ........................................................ 520 40 ........................................................... 89 Sch 9 ...................................................... 89 Consumer Protection Act 1987. .......... 222 Consumers, Estate Agents and Redress Act 2007........................... 292 Pt 1 ...................................................... 268 ss 1, 2, 10, 19, 23–28.......................... 268 31 ......................................................... 301 42, 46–50 ............................................ 269 Sch 1 .................................................... 268 Contracts (Rights of Third Parties) Act 1999 ................................. 343, 366 Counter-Terrorism Act 2008............... 128 Coroners Act 1988 ................................ 576 s 13 ...................................................... 577 Corporate Manslaughter and Corporate Homicide Act 2007 ................................................ 262 Courts Act 2003 s 1 ........................................................ 685 Courts and Legal Services Act 1990 ................................................ 438 ss 21–26 .............................................. 481 Crime and Disorder Act 1998 ............... 82 ss 8–10 ................................................ 353 Crime (Sentences) Act 1997 s 29 ...................................................... 641 Criminal Injuries Compensation Act 1995 ......................................... 782 Criminal Justice Act 1988 .............. 12, 145 ss 108–77 ............................................ 781 s 133 .................................................... 769 171 ................................................. 12, 146 171(1) .................................................. 145 Schs 6, 7 .............................................. 781 Criminal Justice Act 1991 Sch 5 .................................................... 643 Criminal Justice Act 2003 .................... 641 Criminal Law Act 1967 ......................... 193 Crown Proceedings Act 1947 ......... 9, 342, 751, 753 s 21 ........................................11, 181, 342 25 ......................................................... 342 Data Protection Act 1998 .....459, 473, 479

Defence of the Realm Act 1914 ............. 96 Deregulation and Contracting Out Act 1994 ................ 172, 247, 251, 532 s 1 ........................................................ 172 71 ......................................................... 343 Disability Discrimination Act 1995 s 22(3) ................................................. 205 24(1) .................................................... 205 24(3)(a) ............................................... 206 49A ...................................................... 206 Disability Discrimination Act 2005 ........................................ 206, 364 Education Act 1993 s 298 .................................................... 720 Education Act 2002 s 162A ................................................... 68 Education and Inspections Act 2006 .................................................. 68 s 97 ...................................................... 353 Education (Schools) Act 1992 ............... 61 Energy Act 2008 .................................... 179 Enterprise Act 2002...... 253, 297, 313, 321 Equality Act 2006 ............52, 200, 288, 364 s 16 ...................................................... 738 30(3) .................................................... 701 European Communities Act 1972........ 50, 141, 179, 180–82, 383 s 2 ........................................................ 167 s 2(1) ................................................... 180 s 2(2) ........................................... 180, 181 s 2(4) ................................................... 180 3(1) ...................................................... 179 Sch 4 .................................................... 180 European Parliamentary Elections Act 2002 ........................................... 15 Factories Acts ......................................... 439 Factory Act 1833...................................... 50 Fair Employment (Northern Ireland) Act 1989 .......................... 363 Finance Act 2003 s 320 .................................................... 776 Financial Management and Accountability Act 1997 (Aus) ............................................... 779 Financial Services Act 1986.................. 323 Financial Services and Markets Act 2000 ........ 251, 263, 271, 308, 481

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Table of Statutes Food Standards Act 1999 ..................... 278 Foreign Compensation Act 1950 .......... 27 Foreign Compensation Act 1969 s 3 .......................................................... 26 Freedom of Information Act 2000 ....... 47, 453, 458, 459, 470, 473–77, 480, 609, 706 s 1 ........................................................ 474 5 ........................................................... 474 2(2)(b)................................................. 474 8 ........................................................... 475 8(1) ...................................................... 474 19 ......................................................... 632 23, 36 ................................................... 474 45, 46, 53............................................. 475 58 ......................................................... 476 Sch 1 .................................................... 474 Government of Wales Act 1998 ........... 87, 142, 182 s 31 ...................................................... 143 Government of Wales Act 2006 ........... 88, 142, 300 s 33 ...................................................... 143 48, 49 ................................................... 342 60 ......................................................... 367 Government Resources Act 2000 .......... 60 Greater London Authority Act 1999 ................................426, 427, 430 ss 220–224 .......................................... 434 225–227 .............................................. 430 229–231 .............................................. 430 Schs 14, 15 .......................................... 434 Health and Safety at Work etc Act 1974 ................................248, 578, 581 s 3 ........................................................ 594 Health and Safety Offences Act 2008 ................................................ 263 Health and Social Care Act 2008 Pt 1 ...................................................... 327 Pt 2 ...................................................... 329 ss 98–110 ............................................ 329 115 ....................................................... 330 119, 120............................................... 330 145 ....................................................... 382 Health and Social Services and Social Security Adjudications Act 1983 ................ 499, 502, 503, 507

Sch 8 para 8 .................................................. 500 Health Service Commissioner Act 1993 ........................................ 481, 532 s 3(2) ................................................... 564 7(2)(a) ................................................. 374 11 ......................................................... 564 11(1), (3)............................................. 564 Health Service Commissioners (Amendment) Act 1996 ............... 563 Housing Act 1985 .................................. 372 Housing Act 1996 Pt VII ..................................663, 664, 666 Housing (Homeless Persons) Act 1977 ................................................ 688 Human Rights Act 1988 ............ 11, 14, 15, 20, 22, 30, 45, 87, 89, 98, 118, 119, 122, 126, 134–39, 141, 149, 159, 180, 182, 288, 315, 316, 320, 341, 353, 365, 376, 377, 379, 381, 463, 464, 489, 511, 514, 604, 617, 631, 632, 635, 637, 638, 640, 653, 654, 661, 662, 678, 679, 682, 683, 694, 702, 716, 719, 721, 734–37, 746, 748, 768, 772–74, 790, 792 s 2(1) ................................................... 136 3 .......................... 119, 127, 157, 158, 638 3(3) ...................................................... 127 4 ...........................................127, 638, 730 5 ........................................................... 158 6 ....................320, 377–80, 383, 700, 740 6(3) .............................................. 377, 378 6(3)(a) ................................................. 378 6(3)(b)...........................................378–80 6(5) .............................................. 377, 378 6(6) ...................................................... 377 7 ........................................................... 700 7(1) ................................................ 29, 700 8(2), (3) ............................................... 771 8(4) .............................................. 771, 774 10 ................................................. 154, 167 12(4) .................................................... 463 19 ................................ 119, 148, 154, 739 19(1) .................................................... 149 Sch 1 .................................................... 167

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Table of Statutes Hunting Act 2004 .................111, 113, 144, 145, 163 Immigration Act 1971 .................. 516, 757 Pt II ..................................................... 516 Immigration and Asylum Act 1999 ................................516, 519, 741 s 95 ...................................................... 739 Immigration Appeals Act 1969 ........... 516 Income and Corporation Taxes Act 1988 ......................................... 776 Independent Broadcasting Authority Act 1973 ....................... 396 Inquiries Act 2005 ........ 572, 580, 607–609 s 1 ........................................................ 607 2 ........................................................... 576 3–9....................................................... 607 13, 14 ........................................... 607, 609 15 ......................................................... 608 17 ......................................................... 607 18 ......................................................... 608 19 ......................................................... 608 19(4) .................................................... 608 Inquiries Act 2006 ................................. 572 Jobseekers’ Act 1995 ss 1, 9 ................................................... 355 Judicature Act 1870 ................................. 51 Lands Clauses Consolidation Act 1845 ................................................ 753 Land Compensation Act 1973 ............. 753 Legal Aid and Advice Act 1949 ........... 438 Legal Services Act 2007......................... 438 Pt 2 ...................................................... 246 Legislative and Regulatory Reform Act 2006 (LRRA) ................. 169, 171, 255, 257, 261, 292 Pt 1 ...................................................... 257 s 2 ........................................................ 257 Pt 2 ...................................................... 258 ss 21, 22, 24, 32 .................................. 259 Licensing Act 2003 ................................ 208 Limitation Act 1980 s 32(1)(c) ............................................ 777 Local Government Act 1972 ............ 51, 60 s 111 ..............................................367–69 250 ....................................................... 580 Sch 13 .................................................. 368 Local Government Act 1974 ................ 481

Local Government Act 1985 .................. 84 Local Government Act 1988 ................ 360 s 7 ........................................................ 363 Local Government Act 1992 ................ 360 Local Government Act 1999 .......... 85, 364 s 3 ........................................................ 361 Local Government Act 2000 ............ 60, 85 s 2 ........................................................ 367 92 ......................................................... 784 Local Government Act 2003 s 99 .............................................. 218, 220 Local Government and Public Involvement in Health Act 2007 ....................................86, 87, 481 ss 136–40 .............................................. 85 s 173 .................................................... 374 Pt 7 ........................................................ 86 Local Government (Contracts) Act 1997 ................................................ 370 Local Government Finance Act 1982 .................................................. 60 Local Government, Planning and Land Act 1980 ....................... 582, 583 Pt III .................................................... 360 London Regional Transport Act 1984 ................................................ 426 Magna Carta 1215 ................................. 182 Mental Health Act 1983 ....................... 494 Merchant Shipping Act 1988 ............... 181 Merchant Shipping Act 1995 ............... 581 Metropolitan Police Act 1829 ................ 51 Ministry of Social Security Act 1966 ................................................ 495 Municipal Reform Act 1835 .................. 51 National Assistance Act 1948 ..495, 740, 741 National Audit Act 1983 ........................ 60 National Health Service Act 1977 ....... 580 National Health Service Reform and Health Care Professions Act 2002 ......................................... 329 National Health Service Reorganisation Act 1973 ............. 481 National Insurance Act 1911 ............... 438 Nationality, Immigration and Asylum Act 2002 (NIAA)............ 517 s 55 ............................... 738–41, 743, 746

xlv

Table of Statutes s 55(1) ................................................. 739 s 55(5) ................................................. 746 s 55(5)(a) ............................739, 740, 746 s 55(10) ............................................... 740 81 ......................................................... 519 101 ....................................................... 519 101(1) .................................................. 517 101(2) .................................................. 518 102, 103............................................... 519 103A .................................................... 519 103A(2), (5)........................................ 519 103B–E ............................................... 519 Schs 4, 5 .............................................. 517 National Lottery Act 1993 s 4 ........................................................ 398 ss 9, 10................................................. 400 National Lottery Act 1998 .................... 398 s 2 ........................................................ 400 National Lottery Act 2006 .................... 398 NHS Redress Act 2006.................. 453, 776 Northern Ireland Act 1998 .................. 142 Northern Ireland (St Andrews Agreement) Act 2006 ..................... 88 Northern Ireland (St Andrews Agreement) Act 2007 ..................... 88 Official Secrets Act 1911 ....................... 470 Official Secrets Act 1989 ............... 470, 631 Old Age Pensions Act 1908.................. 438 Parliament Act 1911 ...............111–13, 144 Parliament Act 1949 ...............111–13, 144 Parliamentary and Health Service Commissioners Act 1987 Sch 1 .................................................... 532 Parliamentary Commissioner Act 1967 ...................... 477, 530, 532, 534, 559, 789 s 5 ........................................................ 543 s 5(2) ...................................555, 562, 787 s 5(5) ................................................... 539 6(1) ...................................................... 532 7(1) ...................................................... 544 8 ........................................................... 544 10(3) ................... 532, 540, 549, 556, 558 11(3) ....................................472, 544, 563 12(3) ........................... 533, 552, 553, 555 Sch 2 ........................... 532, 543, 555, 567 Sch 3 ............................................ 373, 532

Parliamentary Commissioner Act 1994 s 5(2) ................................................... 538 Pensions Act 1995 ......................... 554, 555 Pensions Act 2004 .................554, 555, 561 Pensions Act 2007 ......................... 151, 561 Planning Act 2008 .................179, 586, 587 Planning and Compulsory Purchase Act 2004 ........................ 584 Police Act 1996 ................................ 64, 580 Police and Criminal Evidence Act 1984 ..................................17, 193, 216 s 85 ...................................................... 446 Police and Justice Act 2006 ss 23–25 .............................................. 352 Police Reform Act 2002 ........................ 578 Poor Law Act 1834 ............................ 50, 51 Poor Persons Defence Act 1930 .......... 438 Powers of the Criminal Courts (Sentencing) Act 2000.................. 352 Prevention of Terrorism Act 2005 ........................................ 128, 132 s 14(3) ................................................. 133 Prison Act 1952 s 47(1) ................................................. 118 Public Appointments and Public Bodies etc. (Scotland) Act 2003 .................................................. 68 Public Audit (Wales) Act 2004 .............. 60 Public Processions (Northern Ireland) Act 1998 Sch. 1 ................................................... 659 Public Services Ombudsman (Wales) Act 2005 .................. 480, 481 Sch 2 .................................................... 374 Race Relations Act 1976 .......213, 787, 790 s 43 ...................................................... 287 71 ......................................................... 726 Race Relations (Amendment) Act 2000 .......213, 288, 364, 678, 787, 790 Railways Act 1974 ................................. 581 Railways Act 1993 ................................. 402 s 1 ........................................................ 403 4 ........................................................... 403 5 ........................................................... 404 5(3) ...................................................... 403 8 ........................................................... 403 23. ........................................................ 404

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Table of Statutes Railways Act 1993 (cont.) 24 ......................................................... 404 25 ......................................................... 404 26 ......................................................... 404 26(3) .................................................... 405 27 ......................................................... 404 28 ......................................................... 404 29 ......................................................... 404 30, 31 ................................................... 404 57, 58 ........................................... 404, 406 Railways Act 2005 ................................. 410 Railways and Transport Safety Act 2003 ........................................ 253, 581 ss 15, 16............................................... 407 Railways Clauses Consolidation Act 1845 ......................................... 753 Registered Homes Act 1984 ................. 761 Regulation of Investigatory Powers Act 2000 ............................. 81 Regulatory Enforcement and Sanctions Act 2008 (RESA) ........ 255, 292, 302 s 6, 7, 15, 17 ........................................ 258 Pt 3 (ss 36–71) ................................... 265 36 ......................................................... 266 39–50 .................................................. 265 62 ......................................................... 266 63–65 .................................................. 265 66–68 .................................................. 266 Pt 4 (ss 72, 73).................................... 261 Schs 5–7 .............................................. 265 Regulatory Reform Act 2001 ...... 168, 189, 251, 255 School Standards and Framework Act 1998 ......................................... 352 s 131 ...................................................... 82 Scotland Act 1998...............60, 87, 89, 142, 182, 580 ss 29, 33............................................... 142 Scottish Public Services Ombudsman Act 2002 ................. 481 Serious Organised Crime and Police Act 2005 ss 132–8 ................................................ 83 Single European Act 1986 ...................... 90 Social Security Act 1980 s 14, 15 ................................................ 498

Social Security Act 1986 ...................... 503 Social Security Act 1990 ....................... 481 Social Security Act 1992 ....................... 172 Social Security Act 1998 ....................... 502 ss 4–7 .................................................. 502 9, 10 ..................................................... 456 Statutory Instruments Act 1946 ......... 164, 166, 191 Sunday Entertainments Act 1932 ......... 42 Supplementary Benefits Act 1976 s 15(1)(c) ............................................ 497 Supreme Court Act 1981 s 31 ........................................11, 679, 690 s 31(2) ................................................. 680 s 31(3) ................................................. 696 s 31(4)(b) ............................................ 750 s 31(6) ................................................. 725 Television Act 1954 ............................... 396 s 3, 6 .................................................... 396 Terrorism Act 2000 ............................... 128 s 44 ................................................ 83, 215 Terrorism Act 2006 ............................... 128 Town and Country Planning Act 1947 ................................................ 582 Transport Act 1947 ............................... 402 Transport Act 2000 ............................... 407 ss 201–222 .......................................... 407 Transport (London) Act 1969 s 1(1) ................................................... 104 Tribunals and Inquiries Act 1958 ...... 103, 490, 509 s 1 ........................................................ 506 Tribunals and Inquiries Act 1971 ....... 509 s 13 ...................................................... 498 Tribunals and Inquiries Act 1992 s 10 .............................................. 103, 498 11 ......................................................... 509 Tribunals, Courts and Enforcement Act 2007 .......... 37, 442, 486, 489, 494, 502, 503, 520–24, 571, 685, 782 s 1 ........................................................ 520 2(3) ...................................................... 521 2(3)(d)................................................. 521 9(4)(c) ................................................. 522 9(5), (8) ............................................... 522 10 ......................................................... 522

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Table of Statutes 10(6) .................................................... 522 11 ......................................................... 509 12 ......................................................... 510 12(2)(b)............................................... 522 12(4)(b)............................................... 522 13 ................................................. 509, 522 14 ......................................................... 510 14(4)(a), (b)........................................ 522 19 ......................................................... 685 31(2) .................................................... 523 44 ......................................................... 506 141 ....................................................... 723 Sch 7 .................................................... 506 Tribunals of Inquiry (Evidence) Act 1921 ............... 573, 579, 581, 604, 605, 607 Unemployment Assistance Act 1934 ................................................ 495 Utilities Act 2000 ........................... 288, 291 Pts 1–4 ................................................ 253 Vaccine Damages Payment Act 1979 ................................................ 755

Water Act 1989 .............................. 150, 293 Water Act 2003 .............................. 299, 301 s 35 ...................................................... 300 39 ................................................. 299, 301 43, 44, 46–49 ...................................... 301 52 ......................................................... 300 Water Industry Act 1991 ...................... 294 ss 18–19 .............................................. 302 28–29 .................................................. 296 37 ......................................................... 302 Water Industry Act 1999 ...................... 297 Water Services etc. (Scotland) Act 2005 ................................................ 293 Weights and Measures Act 1985 ......... 182 Welfare Reform Act 2007..................... 355 Workmen’s Compensation Act 1897 ................................................ 438 Workmen’s Compensation Act 1906 ................................................ 438 Youth Justice and Criminal Evidence Act 1999 ........................ 352

Table of Statutory Instruments

Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230......................................... 519 Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2008, SI 2008/1088 ...................................... 519 Civil Procedure Rules ............494, 682–84, 687, 690, 692, 693, 707, 709, 717, 724 Pt 1 .............................................. 683, 684 1.4 ........................................................ 691 3 ........................................................... 694 30.5 ...................................................... 684 31 ......................................................... 707 44 ......................................................... 715 Pt 54 .................. 679, 683, 692, 694, 702, 703, 707 Pt 54.1 ................................................. 683 Pt 54.2, 44.3 ........................................ 680 Pt 54.5 ................................................. 690 Pt 54.20 ............................................... 684 Pt 54.14 ............................................... 707 Pt 54.17 ............................................... 702 Pt 54.19 ............................................... 723 Pt PD54 .............................................. 707 Commissioner for Complaints (Northern Ireland) Order 1996, SI 1297/1996 (NI 7)............ 480 Contracting Out (Functions Relating to Broadcast Advertising) and Specification of Relevant Functions Order 2004, SI 2004/1975 ...................................... 331

Environmental Information Regulations 2004, SI 2004/3391 ...................................... 473 Freedom of Information (Scotland) Act Environmental Information (Scotland) Regulations, SI 2004/520......................................... 473 Government Resources and Accounts Act 2000 (Audit of Public Bodies) Order 2003, SI 2003/1326 ...................................... 308 Government Resources and Accounts Act 2000 (Rights of Access by Comptroller and Auditor General) Order, SI 2000/1325 ...................................... 308 Inquiry Rules 2006, SI 2006/1838 ...... 608, 609 Lands Tribunal Rules 1996, SI 1996/1022 ...................................... 494 Legislative and Regulatory Reform (Regulatory Functions) Order 2007, SI 2007/3544 ...................................... 259 Legislative Reform (Health and Safety Executive) Order 2008, SI 2008/960 .................................... 258 Licensing of Air Carriers Regulations 1992, SI 2292/1992 ...................................... 488 Local Government Best Value (Exclusion of Noncommercial Considerations) 2001, SI 2001/909.......................... 364

l

Table of Statutory Instruments Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000/1973 ...................................... 651 Prison (Amendment) Rules 2002, SI 2002/2116 Prison Rules 1964, SI 1964/388 r 37 ...................................................... 118 86(1) .................................................... 758 Prison Rules 1999,SI 1999/728 r 39 ...................................................... 758 Public Contracts Regulations 2006, SI 2006/5 ...................... 383, 391 reg 4(3) ............................................... 389 5 ........................................................... 387 9(7) .............................................. 387, 389 12 ......................................................... 387 18(27) .................................................. 388 23 ......................................................... 388 30 ......................................................... 388 30(1), (2)............................................. 388 30(3)–(6) ............................................ 389 32 ......................................................... 389 39 ......................................................... 388 Public Works Contracts Regulations 1991, SI 1991/2680 ...................................... 385 Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007, SI 2007/1889 ............ 482 Rules of the Supreme Court 52.11.1................................................. 511 Ord 53 .................... 11, 679–83, 687, 702 53 1(2) ................................................. 680 53(8) .................................................... 705 Ord 54 ................................................. 510 Sex Discrimination (Northern Ireland) Order 1976, SI 1976/1042 (NI 15) art. 53(2) ......................................... 30, 31 Social Security and Child Support (Decisions and Appeals) Regulations, SI 1999/991

reg 6..................................................... 502 Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, SI 1996/30 Supplementary Benefit and Family Income Supplements (Appeals) Rules, SI 1980/ 1605 ................................................ 498 Statutory Sum Order, SI 2007/193 ...... 755 Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000, SI 2000/1628 .................................. 583 Town and Country Planning (Hearings Procedure) (England) Rules 2000, SI 2000/1626 ...................................... 583 Town and Country Planning (Inquiries Procedure) Rules 1974, SI 1974/419.......................... 584 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI 2008/2685 ...................................... 507 Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008, SI 2008/2686 ...................................... 507 Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698 ...................................... 507 Utilities Contracts Regulations 2006, SI 2006/6 .............................. 383 Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008, SI 2008/594 .................................... 301

Table of European Union Legislation

EC Treaties (TEC) .... 30, 90, 145, 180, 181 Art 5 ...................................................... 92 ex 189 .................................................. 180 226, 228............................................... 277 234 .............................. 180, 181, 560, 700 253 ....................................................... 103 Single European Act 1986 ...................... 90 Treaty of European Union (TEU) ....... 90, 113, 179, 698 Art 10 .................................................... 91 Title VI ............................................... 186 Art 253 ................................................ 632 Treaty of Lisbon............................. 179, 185 Regulations Regulation 1/2003 on the implementation of the rules on competition laid down in Arts. 81–2 of the Treaty ............... 278 Regulation 768/2005 establishing a Community Fisheries Control Agency ............................. 279 Regulation 216/2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Authority ....................................... 279 Directives Directive71/305 ..................................... 384 Directive 76/207/EEC ............................. 30 Directive77/62........................................ 384 Directive 80/987/EEC Art 8 .................................................... 560 Directive 85/337/EEC ........................... 651

Directive 89/665 ....................384, 390, 391 Directive 90/531 .................................... 775 Directive 92/13............................... 384, 391 Directive 92/50....................................... 384 Directive 93/37....................................... 384 Directive 93/96....................................... 384 Directive 93/98....................................... 384 Directive 98/83/EC................................ 300 Directive 2000/60/EC ........................... 299 Directive 2003/4/EC.............................. 473 Directive 2003/9/EC Art 16(2) ............................................. 739 Directive 2004/17/EC ........................... 386 Directive 2004/18/EC ................... 386, 389 Art 2 .................................................... 389 Directive 2006/118/EC ......................... 299 Directive 2007/66 .......................... 391, 392 Art 2d .................................................. 392 Directive 2008/99/EC ........................... 263 European Convention on Human Rights European Convention on Human Rights.............. 14, 15, 29, 91, 98, 113, 114, 116, 118–20, 126, 129–37, 142, 147, 148, 154, 155, 158, 316, 320, 365, 367, 377–83, 515, 571, 609, 610, 613, 617, 618, 630, 635, 637, 640, 666, 671, 675–78, 686, 690, 707, 712, 721, 722, 728, 735, 737, 738, 740, 741, 746, 748, 778 Art 1 ............................................ 145, 610 2 ...610, 611, 614, 619, 644, 725, 770–72

lii

Table of European Union Legislation 3 ..... 127, 515, 610, 644, 722, 725, 739, 741–46, 767, 772 5 .................................. 129, 133, 640, 769 5(4) ..................... 132, 640, 641, 643, 659 5(5) ...................................................... 772 6 ............ 31, 131, 315, 321, 617–19, 626, 628, 637–39, 641, 642, 653, 654 660, 662–65, 675, 685, 705, 741 6(1) ...................... 30, 128, 131, 132, 443, 489528, 638, 639, 770, 772, 774 6(3) ...................................................... 132 8 ...................79, 113, 117, 118, 127, 315, 379, 380, 462, 635, 721, 722, 725, 771–73

8(1) ...................................................... 118 8(2) ...................................................... 520 9(1), (2) ............................................... 121 10 .........................................122, 148, 462 13 .................31, 116, 117, 730, 767, 771, 772, 786 14 ......................................................... 129 15 ................................................. 128, 130 34 ......................................................... 700 41 ................................ 767, 770, 771, 774 Protocol 1 ........................................... 145 Art 1 ........................... 122, 315, 380, 753

1

Red and green light theories

Contents 1. Law and state 2. The Diceyan legacy (a) Dicey and the rule-of-law state (b) ‘The English have no administrative law’ (c) State and Crown (d) The state and statutory authority (e) Public and private law 3. Dicey and ‘red light theory’ 4. Ouster clauses and the rule of law 5. ‘Green light theory’ 6. ‘Green light theory’ and control 7. Allocation of functions 8. Towards consensus?

1. Law and state Behind every theory of administrative law there lies a theory of the state. As Harold Laski once said, constitutional law is unintelligible except as the expression of an economic system of which it was designed to serve as a rampart.1 By this he meant that the machinery of government was an expression of the society in which it operated; one could not be understood except in the context of the other. In 1941, Sir Cecil Carr made a similar point in a series of lectures on administrative law given at Harvard University, in the course of which he said: We nod approvingly today when someone tells us that, whereas the State used to be merely policeman, judge and protector, it has now become schoolmaster, doctor, house-builder, road-maker, town-planner, public utility supplier and all the rest of it. The contrast is no recent discovery. De Tocqueville observed in 1866 that the State ‘everywhere interferes 1

H. Laski, A Grammar of Politics (Allen and Unwin, 1925), p. 578.

2

Law and Administration more than it did; it regulates more undertakings, and undertakings of a lesser kind; and it gains a firmer footing every day, about, around and above all private persons, to assist, to advise, and to coerce them’ (Oeuvres, III, 501). Nassau William Senior, a Benthamite ten years older than Chadwick, a colleague of his on the original Poor Law Commission, had justified this tendency. A government, he thinks, must do whatever conduces to the welfare of the governed (the utilitarian theory); it will make mistakes, but non-interference may be an error too; one can be passively wrong as well as actively wrong. One might go back much earlier still to Aristotle, who said that the city-state or partnership-community comes into existence to protect life and remains in existence to protect a proper way of living. What is the proper standard? That is an age-long issue which is still a burning question of political controversy. The problems of administrative law are approached in the light of that fire. Those who dislike the statutory delegation of legislative power or the statutory creation of a non-judicial tribunal will often be those who dislike the policy behind the statute and seek to fight it at every stage. On the one side are those who want to step on the accelerator, on the other those who want to apply the brake.2

In this passage, Carr placed the demise of the minimal state, or state as ‘policeman, judge and protector’, and the birth of state interventionism, in the early nineteenth century, attributing the change to the work of the economist Nassau Senior and Edwin Chadwick, social and administrative reformer. Barker set two momentous decades of state growth slightly later, in the 1880s, when the number of state employees increased significantly, and the 1890s, when state expenditure as a percentage of national expenditure began to rise. By the end of the nineteenth century all the major political parties had for practical purposes abandoned the ideal of limited government, and accepted the necessity for intervention. The old conception of government as minimal and static was being swept away by a new conception, which was: if not dynamic, then at least ambulatory. The old conception had viewed government as administering laws, keeping the peace and defending the frontiers. But it was not a part of government’s function to act upon society, nor was it expected that legislation would do much more than sustain clear and established customs. In contrast the new conception was of government as the instigator of movement. This conception of movement was not restricted to the parties of progress or reform; the Conservative and Unionist Party at the beginning of the twentieth century was increasingly characterized, despite opposition, by a commitment to tariff reform, a programme of discriminatory trade duties designed to . . . provide funds for new military and social expenditure at home. Government was not merely to regulate society, it was to improve it.3

This was, in short, the beginning of the age of ‘collectivism’, as Dicey termed socialist theories that favoured ‘the intervention of the State, even at some 2 3

C. Carr, Concerning English Administrative Law (Oxford University Press, 1941), pp. 10–11. R. Barker, Political Ideas in Modern Britain, 2nd edn (Methuen, 1997), pp. 14, 18.

3

Red and green light theories

sacrifice of individual freedom, for the purpose of conferring benefit upon the mass of the people.’4 Dicey acknowledged collectivism grudgingly, although presciently he foresaw its influence as likely to increase in force and volume. What Carr was saying was hardly novel and, to his American audience, would probably have seemed unexceptional; the link between realist jurisprudence and the ‘administrative state’ was well established in the USA at the time Carr spoke.5 English lawyers, on the other hand, might have found the idea unpalatable. The nineteenth-century legal scholars who had laid the foundation stones of English administrative law were certainly alive to the relationship between constitutional law and political theory and were themselves well grounded in both.6 But this was an era when positivism dominated legal theory and case law was predominantly formalist in its focus on legal principles and concepts. English lawyers understood law as properly isolated from its social context, ‘endowed with its own discrete, integral history, its own “science”, and its own values, which are all treated as a single block sealed off from general social history, from politics, and from morality’.7 Barker confirms that a similar outlook obtained amongst political scientists. While the political consequences of ‘particular laws and particular legal judgments’ met with occasional recognition, the character of the judicial system and the general assumptions of law and lawyers were ‘little considered in debates about the political character and goals of the nation’, and legal ideas were in general ‘invisible’.8 To question this – as Laski, by describing the judiciary as a branch of government had done and Griffith in The Politics of the Judiciary9 was to do – seemed heretical. The dominance of positivism in thinking about public law is largely due to the influence of two great men: in the nineteenth century, Albert Venn Dicey (1835–1922), to whom must go the credit of the first sophisticated attempt ‘to apply the juridical method to English public law’;10 in the twentieth century, H. L. A. Hart (1907–92), whose Concept of Law11 is a masterpiece of legal positivism. Like Jeremy Bentham (1748–1832) and John Austin (1790–1859), legal philosophers who saw themselves as rationalists and were concerned to excise mysticism and the doctrines of natural law from legal philosophy, Dicey believed that law was capable of reduction to rational, scientific principles. Hart set out ‘to understand the legal order in terms of governance through 4

5

6

7 8 9 10 11

A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, 2nd edn (Macmillan, 1914), pp. 64–5. See R. Gordon, ‘Willis’s American counterparts: The legal realists’ defence of administration’ (2005) 55 UTLJ 405. F. Maitland, ‘A historical sketch of liberty and equality’ in Collected Papers, vol. 1 (Cambridge University Press, 1911). p. 1; F. Pollock, Essays in the Law (Macmillan, 1922), Nos. 2 and 3. J. Shklar, Legalism (Harvard University Press, 1964), pp. 2–3. Barker, Political Ideas in Modern Britain. J. Griffith, The Politics of the Judiciary (Fontana, 1977). W. I. Jennings, ‘In praise of Dicey (1885-1935)’ (1935) 13 Pub. Admin.123, 133. H. L. A. Hart, The Concept of Law, 2nd revised edn (Clarendon Press, 1997).

4

Law and Administration

rules’, working with the tools of analytic and linguistic philosophy. His work set in place an established legal hierarchy of primary and secondary rules. It is important not to underestimate these achievements. Formalism and conceptual reasoning are essential building blocks of a legal system, which structure judicial decision-making and help to maintain consistency.12 This in turn helps to underpin the rule of law.13 This is not the place to debate the many degrees of positivism. It is, however, helpful to refer to Coyle’s recent division of contemporary English jurisprudence into main groupings: (i) a moderate legal positivism, which maintains that ‘law can be elucidated without reference to morality, and that it is the duty of judges to determine the content of and apply the law without recourse to moral judgments’; and (ii) liberal idealism, where law is viewed as an opentextured set of principles, rooted in rights derived from ‘shared assumptions and beliefs which prescribe for law a particular moral content’.14 In the evolution of liberal idealism, the ‘interpretivist’ work of the American theorist Ronald Dworkin15 has been influential. The two approaches should not, however, be seen as monopolising the field of administrative law. Even if they infuse case law studied in later chapters more radical positions frequently emerge.

2. The Diceyan legacy (a) Dicey and the rule-of-law state Dicey’s Introduction to the Law of the Constitution, published in 1885, acts almost as a substitute for a written constitution. His ideas lock up together to form the ideal-type of a ‘balanced’ constitution, in which the executive, envisaged as capable of arbitrary encroachment on the rights of individual citizens, will be subject, on the one side, to political control by Parliament and, on the other, to legal control through the common law by the courts. As expressed by Dicey in terms of the twin doctrines of the rule of law and parliamentary sovereignty, the balance necessarily tips in favour of representative government.16 The ancient philosophical ideal of the rule of law can be traced to Aristotle’s government of ‘laws not men’ and has been explored by generations of political philosophers. It provides the basis for the idea of ‘limited government’ and ‘constitutionalism’ (government limited by law and by a constitution or 12 13

14

15 16

N. MacCormick, Legal Reasoning and Legal Theory (Clarendon Press, 1994). See C. Forsyth, ‘Showing the fly the way out of the flybottle: The value of formalism and conceptual reasoning in administrative law’ (2007) 66 CLJ 325. S. Coyle, ‘Positivism, idealism and the rule of law’ (2006) 26 OJLS 257, 259 citing T. Campbell, The Legal Theory of Ethical Positivism (Dartmouth, 1996), p. 1. R. Dworkin, Taking Rights Seriously (Duckworth, 1967) and Law’s Empire (Fontana, 1986). M. Vile, Constitutionalism and Separation of Powers (Clarendon Press, 1967), pp. 230–3; J. Griffith, ‘The common law and the political constitution’ (2001) 117 LQR 42. See generally on Dicey’s legacy, M. Loughlin, Public Law and Political Theory (Clarendon Press, 1992), pp. 140–62.

5

Red and green light theories

constitutional principles). Below, Martin Shapiro, an American political scientist, nicely encapsulates the conception of ‘bounded and billeted’ government, central to Anglo-American public law: Administrative law as it has historically been understood presupposes that there is something called administration. The administrator and/or the administrative agency or organization exist as a bounded reality. Administrative law prescribes behaviour within administrative organizations; more importantly, it delineates the relationships between those inside an administration and those outside it. Outside an administration lie both the statutemaker whose laws and regulations administrators owe a legal duty to faithfully implement and the citizens to whom administrators owe legally correct procedural and substantive action. More generally, the political and organization theory that inform our administrative law have traditionally viewed public administration as a set of bounded organizations within which decisions are made collectively. On this view, these ‘organs of public administration’ are coordinated with one another, subordinated to political authority, and obligated to respect the outside individuals and interests whom they regulate and serve.17

In the work of Friedrich Hayek, economist and political theorist, there was a close link between the rule of law and his own strong belief in the limited, minimal or ‘night-watchman’ state mentioned by Carr. In a passage that looks forward to contemporary faith in the market, Hayek in his early classic, The Road to Serfdom, drew a ‘general distinction between the rule of law and arbitrary government’: Under the first, government confines itself to fixing rules determining the conditions under which the available resources may be used, leaving to the individuals the decision for what ends they are to be used. Under the second, the government directs the use of the means of production to particular ends. The first type of rules can be made in advance, in the shape of formal rules which do not aim at the wants and needs of particular people . . . Economic planning of the collectivist kind necessarily involves the very opposite of this. The planning authority cannot confine itself to providing opportunities for unknown people to make whatever use of them they like. It cannot tie itself down in advance to general and formal rules which prevent arbitrariness. It must provide for the actual needs of people as they arise and then choose deliberately between them.18

Hayek here assumes that, in a rule-of-law state, there must be as much individual freedom as is compatible with the freedom of others, reflecting the ideal of a liberal democratic society, which expects ‘freedom from the state, 17

18

M. Shapiro, ‘Administrative law unbounded’ (2001) 8 Indiana Journal of Global Legal Studies 369. F. Hayek, The Road to Serfdom (Routledge, 1944), p. 10. See also F. Hayek, The Constitution of Liberty (Routledge and Kegan Paul, 1960) and Law, Legislation and Liberty (Routledge and Kegan Paul, 1973-79).

6

Law and Administration

demanding that some individual freedoms, or rights, should be protected from the state and from majority decisions.’19 This ‘thin’ rule of law excludes by definition a planned economy or welfare state and is the context for what we have called ‘red light theories’ of administrative law, where the emphasis is on citizens’ rights and on law as a brake on state action. This is a highly contestable proposition which has become the centre of much political controversy. The emphasis on formal, predictable rules makes the rule-of-law idea attractive to lawyers. Lawyers have willingly adopted the rule-of-law paradigm as a constitutional justification for the judicial power to ‘review’ governmental and administrative acts and to declare them lawful or unlawful and in excess of power. Dicey’s late nineteenth-century restatement of the rule-of-law doctrine comprised three elements – (i) that the state possesses no ‘exceptional’ powers and (ii) that individual public servants are responsible to (iii) the ordinary courts of the land for their use of statutory powers: When we say that the supremacy of the rule of law is a characteristic of the English constitution we generally include under one expression at least three distinct though kindred conceptions. [First] that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint . . . [Secondly], not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen . . . [Thirdly] that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.20

Dicey’s articulation of the rule-of-law principle is so quintessentially English that its opponents readily dismiss it as chauvinistic. Yet Allan thinks Dicey:

19

20

P. Dunleavy and B. O’Leary, Theories of the State: The politics of liberal democracy (Macmillan, 1987), p. 5. A. V. Dicey, Introduction to the Study of the Law of the Constitution, E. C. S. Wade (ed.),10th edn (Macmillan, 1959) (hereafter Introduction), pp. 187–196.

7

Red and green light theories wise to seek an interpretation of the rule of law which reflected the traditions and peculiarities of English common law. Whatever its faults, Dicey’s work recognised the importance of expounding a constitutional philosophy, which could serve as a basis for the systematic exposition and consistent development of legal principle. More recent efforts to give analytical precision to the concept of the rule of law have not always been wholly successful – at least in Britain – and constitutional law has perhaps been weakened in consequence, because its foundations have come to seem uncertain and insecure . . . At the heart of the problem lies the difficulty of articulating a coherent doctrine which resists a purely formal conception of legality – according to which even brutal decrees of a dictator, if formally ‘valid’, meet the requirements of the rule of law – without instead propounding a complete political and social philosophy. The formal conception, which serves only to distinguish the commands of the government in power (whatever their content) from those of anyone else, offers little of value to the constitutionalist theorist. And the richer seams of political theory – ideal versions of justice in the liberal, constitutional state – are inevitably too ambitious (because too controversial) to provide a secure basis for practical analysis . . . It seems very doubtful whether it is possible to formulate a theory of the rule of law of universal validity . . . But it does not follow that we cannot seek to elaborate the meaning and content of the rule of law within the context of the British polity – exploring the legal foundations of constitutionalism in the setting of contingent political institutions. That was, of course, Dicey’s purpose in The Law of the Constitution.21

In an exploration of the rule-of-law principle popular with lawyers, Lord Bingham breaks the idea down into eight sub-rules:22 1. The law must be accessible and so far as possible intelligible. 2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. 3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. 4. The law must afford adequate protection of human rights. 5. Means must be provided for resolving disputes, without prohibitive cost or inordinate delay. 6. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purposes for which the powers were conferred and without exceeding the limits of such powers. 7. Adjudicative procedures provided by the state should be fair. 8. The state must comply with its obligations in international law. Dicey’s procedural prerequisites, slightly modernised, all make an appearance but with three significant additions: Principle 6, which purports to include most of the modern principles of judicial review which, given their fluidity and 21

22

T. Allan, Law, Liberty and Justice: The legal foundations of British constitutionalism (Clarendon Press, 1993), pp. 20–1. T. Bingham, ‘The rule of law’ (2007) 66 CLJ 67 (slightly paraphrased).

8

Law and Administration

rapidly changing nature, might be thought over-ambitious; and Principles 4 and 8, which pull international and human rights law into the compass of the rule of law. The last two are highly controversial. They cross – or invite us to cross – the boundary between procedural and substantive versions of the rule of law.23 The case made for this ‘thick’ rule of law by those of a liberal persuasion is that law cannot ‘serve a bad master’; a rule of law without values is not a true rule of law. A slightly different road to the same end is to incorporate the ‘thick’ rule of law as a constituent element of democracy.24 This leads to a still more bounded view of government according to which majoritarian institutions are debarred from overriding normative values of the rule of law (see Chapter 3). As Raz has cogently argued, the danger here is that in seeking to encapsulate a complete social and political philosophy within a single principle, liberals have deprived the rule of law of any useful role independent of their dominant philosophy.25 Dicey’s prioritisation of parliamentary sovereignty has been reversed, tipping the balance in favour of the rule of law (and law courts). As Dicey insisted and Raz is affirming, the core of the rule of law is procedural: it is ‘a necessary, but not sufficient condition of other vital, civic virtues – freedom, tolerance and justice itself’.26

(b) ‘The English have no administrative law’ At the heart of Dicey’s exposition of the rule of law lay the concept of formal or procedural equality: the submission of ruler and subject alike to the jurisdiction of the same courts of law. Dicey set his face against the French system, where separate and autonomous tribunals attached to the administration handle cases involving the state. Dicey gave a specific and peculiar meaning to the term droit administratif, which he maintained had no proper English equivalent: Anyone who considers with care the nature of the droit administratif of France, or the topics to which it applies, will soon discover that it rests, and always has rested, at bottom on two leading ideas alien to the conceptions of modern Englishmen. The first of these ideas is that the government, and every servant of the government, possesses as representative of the nation, a whole body of special rights, privileges, or prerogatives as against private citizens, and that the extent of these rights, privileges, or prerogatives is to be determined on principles different from the considerations which fix the legal rights and duties of one citizen towards another. An individual in his dealings with 23

24 25 26

See P. Craig, ‘Formal and substantive conceptions of the rule of law: An analytical framework’ [1997] PL 467; R. Cotterell, Law’s Comunity. Legal theory in sociological perspective (Clarendon Press, 1995), pp. 160–77, discussing variant continental conceptions of the rule of law. J. Jowell, ‘Beyond the rule of law: Towards constitutional judicial review’ [2000] PL 671. J. Raz, ‘The rule of law and its virtue’ (1977) 93 LQR 195. J. Laws, ‘The rule of law - form or substance?’ [2007] 4 Justice Journal 24.

9

Red and green light theories the State does not, according to French ideas, stand on anything like the same footing as that on which he stands in dealings with his neighbour. The second of these general ideas is the necessity of maintaining the so-called ‘separation of powers’ (séparation des pouvoirs), or, in other words, of preventing the government, the legislature, and the courts from encroaching upon one another’s province. The expression, however, separation of powers, as applied by Frenchmen to the relations of the executive and the courts, with which alone we are here concerned, may easily mislead. It means, in the mouth of a French statesman or lawyer, something different from what we mean in England by the ‘independence of the judges’, or the like expressions. As interpreted by French history, by French legislation, and by the decisions of French tribunals, it means neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its officials ought (whilst acting officially) to be independent of and to a great extent free from the jurisdiction of the ordinary courts. 27

It was only towards the end of his long career that Dicey admitted the capacity of the separate French system of administrative courts to control abuse of power. Later still he conceded ‘a considerable step towards the introduction among us of something like the droit administratif of France’, though maintaining that the jurisdiction of ‘ordinary law courts’ in cases of breach of the law by public officials ‘is fatal to the existence to true droit administratif’.28 Dicey’s preference was for a unitary court structure, in which administrative cases are handled by ‘ordinary’ courts and judges and public officials stand at least theoretically on an equal footing with private persons. Underlying this arrangement is the principle strongly favoured by Dicey that relationships of citizens with public officials are not – and should not be – radically different from relations between citizens and private bodies.

(c) State and Crown But a gaping hole was left in Dicey’s theory of equality by the existence of substantial areas of monarchical prerogative power. When Dicey wrote, the Crown was immune from civil proceedings in the ‘ordinary courts’, a fact that somewhat undercut his argument. The Crown had to be pursued by the special procedure of ‘petition of right’, a form of droit administratif that lasted until the Crown Proceedings Act 1947. The state does not need to possess special powers ‘in its own name’ if those powers are held by government ministers acting in the name of the Crown. 27

28

Dicey, Introduction, pp. 336–8. For further exposition, see J. Allison, A Continental Distinction in the Common Law: A historical and comparative perspective on English public law, revised edn (Clarendon Press, 2000). A. V. Dicey, ‘Droit administratif in modern French law’ (1901) 18 LQR 302 and ‘The development of administrative law in England’ (1915) 31 LQR 148; and see F. Lawson, ‘Dicey revisited’ (1959) 7 Political Studies 109, 207.

10

Law and Administration

Dicey himself defined prerogative power widely, maintaining that ‘every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative’.29 This unnecessarily broad definition conflates the Crown’s prerogative and common law powers. As we shall see in Chapter 8, this has had serious effects on the law of government contracting. Nevertheless, it is important to understand that the prerogative powers are not merely powers confined to emergency or national security; in the British constitution, the Crown fills the place filled in other constitutions by the notion of executive power.30 Even on Blackstone’s view of prerogative power as ‘exceptional’,31 which brings much Crown activity within the ambit of public law and renders it justiciable, this is a matter of some importance. Until relatively recently, it was accepted that a court faced with a claim of prerogative power could merely pronounce on its validity; the way in which it was exercised could not be reviewed. Not until the seminal ruling of the House of Lords in the GCHQ case32 was it finally established that government is accountable to the courts for its use of prerogative power. In his striking and often-quoted speech, Lord Diplock not only asserted that the prerogative powers form part of the common law but broke new ground in saying that he could ‘see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review’. Accepting his view that no qualitative distinction could be made between statutory and prerogative powers, the House advised that both were subject in the same way to judicial review in respect of their use. In itself, the decision was no more than a warning shot, since the House of Lords endorsed the right of the Prime Minister in her capacity as minister responsible for the Civil Service to withdraw the privilege of joining a trade union from workers at the operational headquarters of the security services. The case, discussed on other grounds in Chapter 3, is a landmark in establishing the justiciability of prerogative power. In recent cases, the courts have tended to intensify the war against prerogative power. M v Home Office33 involved the remnants of Crown 29 30

31

32

33

Dicey, Introduction, p. 425. M. Sunkin and S. Payne (eds), The Nature of the Crown: A legal and political analysis (Oxford University Press, 1999); T. Daintith and A. Page, The Executive in the Constitution: Structure, autonomy and internal control (Oxford University Press, 1999); P. Craig and A. Tomkins (eds), The Executive and Public Law (Oxford University Press, 2006). For a strong rebuttal of Dicey’s over-generous definition, see H. W. R. Wade, Constitutional Fundamentals (Stevens, 1980), pp. 46–9; and see B. Harris, ‘The “third source” of authority for government action’ (1992) 108 LQR 626; ‘The “third source” of authority for government action revisited’ (2007) 123 LQ R 225. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, see p. 107 below. M v Home Office [1994] AC 377, noted in Harlow, ‘Accidental death of an asylum seeker’ (1994) 57 MLR 620. A similar point arose in respect of Scotland after devolution and was settled pragmatically in the same way: see Davidson v Scottish Ministers [2005] UKHL 74; Beggs v Scottish Ministers [2007] UKHL 3.

11

Red and green light theories

immunity, enshrined in s. 21 of the Crown Proceedings Act. This provides that injunctions shall not be granted against the Crown in civil proceedings, an immunity thought previously to cover all mandatory legal remedies, including findings of contempt of court. M, an asylum seeker, had made several consecutive applications for judicial review at the last of which counsel for the Home Office guaranteed that his removal from the UK would be postponed. Due to a mix-up, M was put on a plane to Zaïre, where he subsequently disappeared. When M’s lawyers instituted proceedings, the Court of Appeal held the Home Secretary in contempt of court, circumventing the difficult issue of Crown immunity by holding that he had been acting in his personal capacity. On appeal to the House of Lords, the decision was upheld on the different ground that coercive orders, including findings of contempt, were available against the Crown. Moving decisively on to the constitutional high ground, Lord Woolf invoked the full force of Dicey’s statement of the rule-of-law principle, citing it at length. To conceal the innovative nature of the opinion, he then used formalistic reasoning cleverly, distinguishing injunctions as awarded in ‘civil proceedings’ from the administrative law remedies first introduced by RSC Ord. 53 and later given statutory authority by s. 31 of the Supreme Court Act 1981 (see Chapter 16). In the name of the rule of law, a gaping hole had been blown in the remnants of Crown immunity, even if Lord Woolf took care to warn that the new jurisdiction to issue mandatory orders against the Crown should be used with great care: The Crown’s relationship with the courts does not depend on coercion and in the exceptional situation when a government department’s conduct justifies this, a finding of contempt should suffice. In that exceptional situation, the ability of the court to make a finding of contempt is of great importance. It would demonstrate that a government department has interfered with the administration of justice. It will then be for Parliament to determine what should be the consequences of that finding.

If it is hard to reconcile Crown prerogative power with Dicey’s rule-of-law principle, it is harder still to reconcile it with the concept of representative government or doctrine of parliamentary sovereignty. Not surprisingly then, courts have, since the start of the twentieth century, asserted the primacy of parliamentary legislation over the prerogative powers. It is settled law that where statute governs a field of activity, the prerogative powers fall into in abeyance and cannot be used to fill gaps left by Parliament.34 Whether the principle was truly in issue in the Fire Brigades case35 is a moot point. To understand this famous case, it is necessary to know that the criminal injuries compensation scheme, set up to provide state compensation to victims of violent crime, 34 35

A-G v De Keyser’s Royal Hotel [1920] AC 508. R v Home Secretary, ex p. Fire Brigades Union [1995] 2 AC 513.

12

Law and Administration

had been operated by successive governments under the prerogative power to make ex gratia payments, though the courts had, soon after its establishment, assumed jurisdiction to review.36 There was some feeling that so large a scheme needed to be placed on a statutory footing and in 1988 amendments were introduced in the House of Lords to a criminal justice bill to effect this, in the face of government opposition. The Criminal Justice Act 1988 was stated to come into force ‘on such day as the Secretary of State may appoint’. Instead, the Home Secretary introduced legislation to replace the 1988 statutory scheme, which failed to pass the House of Lords. Hoping to delay implementation indefinitely, he replaced the existing prerogative criminal injuries compensation scheme with a new, less generous, scheme, effectively by-passing the 1988 Act. Trade unions representing workers likely to be affected by the cuts in compensation challenged the legality of this action. There are two different approaches to what had occurred. On the majority view in both the Court of Appeal and the House of Lords, the minister had used the prerogative scheme to stultify the express intention of the legislature; to have recourse to the prerogative power in such circumstances was an abuse of power. As Lord Lloyd put it: Ministers must be taken at their word. If they say they will not implement the statutory scheme, they are repudiating the power conferred on them by Parliament in the clearest possible terms. It is one thing to delay bringing the relevant provisions into force. It is quite another to abdicate or relinquish the power altogether. Nor is that all. The Government’s intentions may be judged by their deeds as well as their words. The introduction of the tariff scheme, which is to be put on a statutory basis as soon as it has had time to settle down, is plainly inconsistent with a continuing power under section 171 to bring the statutory scheme into force . . .

On another view, the prerogative powers were not really in point. The minister had been exercising a discretionary power granted to him by Parliament, though the exercise of the power was seen by several of the judges as surprising to the point of being unreasonable; the minister had gone so far as to debar himself from exercising his power to make the requisite commencement order, which no reasonable minister would have done. On a third view, held by Lords Keith and Mustill dissenting, the decision was quite simply not justiciable; it was ‘of a political and administrative character quite unsuitable to be the subject of review by a court of law’: It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks 36

R v Criminal Injuries Compensation Board, ex p. Lain [1967] 2 QB 864. The operation of the scheme is dealt with in Ch. 17 below.

13

Red and green light theories right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed. This requires the court on occasion to step into the territory which belongs to the executive, not only to verify that the powers asserted accord with the substantive law created by Parliament, but also, that the manner in which they are exercised conforms with the standards of fairness which Parliament must have intended. Concurrently with this judicial function Parliament has its own special means of ensuring that the executive, in the exercise of its delegated functions, performs in a way which Parliament finds appropriate. Ideally, it is these latter methods which should be used to check executive errors and excesses; for it is the task of Parliament and the executive in tandem, not of the courts, to govern the country. In recent years, however, the employment in practice of these specifically Parliamentary measures has fallen short, and sometimes well short, of what was needed to bring the executive into line with the law . . . To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago. For myself, I am quite satisfied that this unprecedented judicial role has been greatly to the public benefit. Nevertheless, it has its risks, of which the courts are well aware . . . [S]ome of the arguments addressed [in the Court of Appeal] would have the court push to the very boundaries of the distinction between court and Parliament established in, and recognised ever since, the Bill of Rights 1688 . . . 300 years have passed since then, and the political and social landscape has changed beyond recognition. But the boundaries remain; they are of crucial significance to our private and public life; and the courts should, I believe, make sure that they are not overstepped.37

We shall find this division of opinion resurfacing in Chapter 4. Some years later, the Government of the day attempted a similar manoeuvre in an epic case involving the expulsion of the islanders from their homes in the Chagos Islands in the interests of establishing an American air base. This time the ancient and little-used prerogative power to legislate by Order in Council in colonial territories was in issue. After expulsion orders that had been made against the islanders in 1971 were quashed by the High Court in 2000, the Foreign Secretary (Robin Cook) indicated that the islanders would be allowed to return home. Instead, the Government passed the British Indian Ocean Territory (Constitution) Order and British Indian Ocean Territory (Immigration) Order, which made unauthorised presence on the islands a criminal offence. These Orders were quashed by the High Court on the ground that they were irrational; the Government had failed to take the interests of the islanders into account. This decision was endorsed by the Court of Appeal on slightly different grounds but reversed by the House of Lords. At all three levels, however, there was agreement that the use of the prerogative powers, 37

[1995] 2 AC 513 (Lord Mustill).

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Law and Administration

whether for administrative or legislative purposes, was subject to review by the courts.38 Now judges are fond of asserting that they ‘will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law’.39 But one by one the ‘no-go areas’ have become occupied territory. In the Belmarsh cases discussed in Chapter 3,40 the courts made deep inroads into powers of detention without trial claimed by government in the name of defence and security of the state. In Corner House,41 the discretionary powers of the Director of the Serious Fraud Office to conduct an investigation and of the Attorney-General to issue instructions that a prosecution be dropped came under scrutiny. An investigation into allegations of corrupt dealings with officials in Saudi Arabia was dropped when the Director concluded that serious damage to the public interest in relation to security and counter-terrorism was likely if the investigation were to continue. The legal challenge, which sought to prioritise the upholding of the rule of law, reached the House of Lords before collapsing. In the Prague Airport case discussed in Chapter 5,42 the conduct of British officials working overseas came under review by the courts and domestic legislation was held to operate extraterritorially. In Al-Skeini,43 the courts were asked whether acts of torture and atrocities allegedly committed by British soldiers in Iraq came under the jurisdiction of the British courts and, if so, whether they were covered by the Human Rights Act (HRA) and ECHR. By a majority, the House of Lords ruled that the HRA would be applicable when a public authority – in this case the army in Iraq – acted outside British territory but within Parliament’s ‘legislative grasp’. In the light of this ruling, the Defence Secretary accepted liability for violation of human rights resulting in the death of one of the appellants with a settlement of £3 million. With the help of the European Convention, the area of immunity from the rule of the law courts is thus shrinking. The invocation of international law before British courts has also expanded very rapidly; domestic courts, as 38

39

40

41

42 43

R (Bancoult) v Foreign Secretary [2001] 1 QB 1067 (Bancoult (No. 1); R (Bancoult) v Foreign Secretary (Bancoult (No. 2) [2006] EWHC Admin. 1038; [2007] EWCA Civ 498 (CA); [2008] UKHL 61 (HL). And see S. Farran, ‘Prerogative rights, human rights, and island people: The Pitcairn and Chagos Island cases’ [2007] PL 414. R v Jones (Margaret) [2006] 2 WLR 772, 783 (Lord Bingham); and see R (Gentle and Clarke) v Prime Minister and Others [2008] UKHL 20. The classic case is Chandler v DPP [1964] AC 763. A and Others v Home Secretary [2005] 2 AC 68; A and Others v Home Secretary [2006] 2 AC 221. R (Corner House Research v Director of the SFO [2008] UKHL 60, overruling the radical judgment of Moses J at [2008] EWHC Admin 714 [56]. R (European Roma Rights Centre) v Immigration Office at Prague Airport [2005] 2 AC 1. Al-Skeini and Others v Defence Secretary [2007] UKHL 26. See also R (Quark Fishing Ltd) v Foreign Secretary [2006] 1 AC 529.

15

Red and green light theories

Lord Rodger recently remarked are finding themselves ‘deep inside the realm of international law – indeed inside the very chamber of the United Nations Security Council itself’.44 The common law is no longer insulated.45 Even if Dicey’s rule-of-law requirements are now largely satisfied, confidence in our system of government as democratic and ‘accountable’ is not. The very concept of prerogative power undercuts the fundamental assumption of our parliamentary democracy that power is bestowed by Parliament and government is responsible to Parliament for its use of power. Without the need for parliamentary agreement, governments can sign treaties of great import, such as the Treaty of Accession to the European Communities; only after ratification of the UK Accession Treaty was legislation necessary to deal with incorporation of the Treaty into UK law (see Chapter 4).46 In similar fashion, the Government can ratify international conventions, such as the ECHR, ratified in 1955 but with provisions not formally incorporated into domestic law until the Human Rights Act was passed in 1998.47 War can be declared and troops sent into battle in the name of the Crown, though in practice Parliament is normally consulted, as was done in the cases of both the Falklands and Iraq wars. Parliamentary approval is typically necessary only at the point when financial levies or changes to the domestic legal system are required.48 In an age of popular democracy, when accountability is a prerequisite of government, this is coming to be seen as unacceptable.49 The House of Commons Select Committee on Public Administration (PASC), which since the election of the New Labour Government in 1997 has taken upon itself the task of keeping the governance of Britain under regular review, has recently demanded action on ministerial prerogative powers.50 It called for them to be listed and a parliamentary committee set up to frame appropriate legislation. To stimulate action, PASC listed three of the most important areas to be dealt with – decisions on armed conflict, treaties and passports – appending its own draft bill. One of Gordon Brown’s first acts as Prime Minister in 2007 was to issue a Green Paper on the governance of Britain, with a view to making ‘the executive, and Parliament, more accountable to the people and to reinvigorate 44

45

46

47

48

49

50

R (Al-Jedda) v Defence Secretary [2007] UKHL58; and see A and Others v HM Treasury [2008] EWHC 869. See further, P. Sales and J. Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 124 LQR 388 However the European Parliamentary Elections Act 2002 requires statutory approval for the ratification of a treaty increasing the powers of the European Parliament. See further, R(Wheeler) v Prime Minister [2008] EWHC 1409. J. Beatson et al., Human Rights: Judicial protection in the United Kingdom (Sweet & Maxwell, 2008). See for a full survey, HL Constitutional Committee (hereafter CC), Waging War: Parliament’s role and responsibility, HL 236 (2006) and Follow up Report, HL 51 (2007). A. Tomkins, Public Law (Clarendon Press, 2003), pp. 81– 90 and Our Republican Constitution (Hart Publishing, 2005). PASC, Taming the Prerogative: Strengthening ministerial accountability to Parliament, HC 422 (2004/05).

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Law and Administration

our democracy’.51 This committed the Government to surrendering or limiting powers ‘which it considers should not, in a modern democracy, be exercised exclusively by the executive (subject to consultation with interested parties and, where necessary, legislation).’ Included in the proposals was a range of important prerogative powers: permitting deployment of troops abroad; requesting a dissolution or recall of Parliament; allowing ratification of international treaties without decision by Parliament; determination of rules governing entitlement to passports and granting of pardons; restriction of parliamentary oversight of the intelligence services; choosing bishops and appointment of judges; direction of prosecutors in individual criminal cases; and establishing the rules governing the Civil Service. A few of these commitments have already found their way into a draft Constitutional Renewal Bill, the subject of consideration by a Joint Committee of both Houses. This provides that treaties will in future have to be laid before Parliament for approval. They may, in exceptional circumstances, however, still be signed without that consent. So are we about to draw a line under a long history? The Joint Committee did not think so. As Lord Morgan, one of the members remarked: ‘Does this not perhaps seem like an area where the Royal Prerogative, instead of being given a decent Christian or un-Christian burial, is in fact alive and well?’52

(d) The state and statutory authority A far stronger criticism of Dicey is that he left English administrative law with a great mistrust of executive or administrative action but without any theoretical basis for its control. By refusing to accept the reality of state power and acknowledge ‘the state’ as a legal entity possessing inherent powers of government, his theory disguised the inevitable inequality between the state, monarch or government, and citizens. Dicey stultified the growth of a ‘special’ public law formulated for this basic inequality: The fallacy of Dicey’s assumptions lies in his contention that the rule of law demands full equality in every respect between government and subjects or citizens. But it is inherent in the very notion of government that it cannot in all respects be equal to the governed, because it has to govern. In a multitude of ways, government must be left to interfere, without legal sanctions, in the lives and interests of citizens, where private persons could not be allowed to do so . . . The refusal of the courts to make planning or policy decisions of government the subject of legal action, also shows that the inequality of government and governed in certain respects is an indispensable fact of organized political life. Where the borderline between governmental freedom and legal responsibility has to be drawn,

51

52

The Governance of Britain, Cm. 7170 (2007) [43–4]; The Governance of Britain: Constitutional renewal, Cm. 7342 (2008). Joint Committee on the Draft Constitutional Renewal Bill, HC 552 (2007/8), Q 737.

17

Red and green light theories is, indeed, a very difficult problem. It may be described as the key problem of administrative law. But we can only begin to understand it after having accepted, unlike Dicey, that inequalities between government and citizens are inherent in the very nature of political society.53

Dicey argued for the superiority of his individuated model on the moral ground that individuals, even when acting in an official capacity, ought not to be able to shuffle off responsibility for their own misdeeds. His theory of administrative and constitutional law sprang from his belief in liberal individualism and dislike of the collectivism that he saw beginning to flourish around him. Dicey refused to recognise that, in his dealings with the state, the individual does not stand on ‘anything like the same footing as that on which he stands in dealings with his neighbour’. What Dicey suggests by equality is that an official is subject to the same rules as an ordinary citizen. But even this is not true. An official known as a collector of taxes has rights which an ordinary person does not possess . . . All public officials, and especially public authorities, have powers and therefore rights which are not possessed by other persons. Similarly, they may have special duties . . . Dicey was not referring to that part of the law which gives powers to and imposes duties upon public authorities. What he was considering . . . was that, if a public officer commits a tort, he will be liable for it in the ordinary civil courts.54

Dicey’s polemical account skated lightly over the extent of statutory power, partly, but only partly, because the web of statute and regulation that today confines and structures government was still fragmentary when he wrote. As legislative activity increased and government obtained control of the legislative machinery, so Dicey’s theory became less adequate. Dicey, for example, was able to conceptualise police powers, with which he was much concerned, as largely judge-made common law powers, incorporated in ‘open textured’ precedent. Today, these powers are mainly statutory, embodied for the most part in the Police and Criminal Evidence Act 1984, which empowers a further network of regulations, directives and administrative guidance. The notion of police powers as based on common law citizen arrest is today as unrealistic as the idea that members of the anti-terrorist squad are simply ‘citizens in uniform’. This is not the way in which the present-day police force is organised or understood. The same is true of the state. Like Hayek after him, Dicey condemned wide administrative powers because of their collectivist connotations. Because he viewed the constitution as ‘an instrument for protecting the fundamental rights of the citizen, and not an instrument for enabling the community to provide services for the benefit of its citizens’, he came to confuse ‘discretionary’ with ‘arbitrary’ powers. For Dicey, 53 54

W. Friedmann, Law in a Changing Society, 2nd edn (Penguin Books, 1964), pp. 276–7. W. I. Jennings, The Law and the Constitution (Athlone Press, 1959), p. 312.

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‘the constitution excludes wide discretionary authority; therefore it forbids large administrative powers’.55 The wide administrative powers feared by Dicey were to be restricted in two ways: on one side stood Parliament which, ‘because it was still dominated by Whig ideas’, would not tolerate administrative interference with individual rights; on the other stood the courts dominated by a similar ideology. Dicey’s mistrust of discretionary power was to become, as we shall see in later chapters, a theme dominating administrative law in the second half of the twentieth century. It started administrative law on a collision course with governments that wish to use administrative law ‘instrumentally’ for socialist or welfare-oriented purposes (below).56

(e) Public and private law Dicey, by setting his face against a ‘special’ administrative court, helped to set in place the so-called ‘private law’ model of public law, in which executive and administration are subject to the common law as administered by the ordinary courts. The model underpins Dicey’s ideal of equality: a vision of government as: under the law, and not just any law, but the same law as applies to everyone else. In that way, government is denied the special exemptions and privileges that could lead to tyranny. Moreover, the application of the law to government is placed in the hands of the ordinary courts, who are independent of government, and who can be relied upon to award an appropriate remedy to the citizen who has been injured by illegal government action.57

Closely tied to this was Dicey’s image of officials as ‘citizens in uniform’, responsible for their actions to the ‘ordinary’ courts through the civil law of tort and contract. A counter-argument advanced forcefully by John Mitchell during the 1960s is that, absent a separate system of administrative law courts, principles appropriate for the control of state power could not evolve.58 Mitchell coupled the case for a separate administrative jurisdiction with a case for special rules, contrasting the English system with that of France, where a public/private jurisdictional divide was intrinsic to the post-Revolutionary legal order. A separate administrative jurisdiction, staffed by jurists with a specialised training, 55 56

57

58

Jennings, ‘In praise of Dicey (1885–1935)’, 132. For Dicey’s views, see Law and Public Opinion. The extreme example is Lord Hewart’s classic, The New Despotism (Ernest Benn, 1929). See further, M. Loughlin, ‘Why the history of English administrative law is not written’ in Dyzenhaus, Hunt and Huscroft (eds.), A Simple Common Lawyer (Hart Publishing, 2008). P. Hogg, Liability of the Crown, 2nd edn (Carswell, 1989), pp. 1–2. See also C. Harlow, ‘“Public” and “private” law: Definition without distinction’ 43 MLR 241; J. Allison, A Continental Distinction in the Common Law: A historical and comparative perspective on English public law, revised edn (Clarendon Press, 2000). J. Mitchell, ‘The causes and effects of the absence of a system of public law in the United Kingdom’ [1965] PL 95.

19

Red and green light theories

knowledgeable about public administration and specialists in administrative law, had evolved since the nineteenth century. This in Mitchell’s view had enabled sophisticated principles of administrative law to be developed appropriate for the control of state power.59 We got instead a typical English adjustment: ‘droit public – English style’.60 In a break with the common law tradition, the judges invoked the public/ private distinction during the 1970s and 1980s to provide support for a stronger and more extensive system of judicial review, building on a new judicial review procedure introduced in 1978 to assume ‘exclusive jurisdiction’ in ‘public law cases’.61 In time, this troublesome distinction would largely fade away (see Chapter 15). The Administrative Court of England and Wales, which today handles judicial review applications, is effectively a glorified division of the High Court, from which appeal lies to the civil division of the Court of Appeal and House of Lords.62 The Administrative Court operates inside the framework of the unitary legal system to which it remains firmly attached; it is, in short, a specialised ordinary court. Tribunals have followed a similar process of ‘judicialisation from within and without’. There is no special administrative appeal tribunal like the Australian Appeals Tribunal or as called for by Robson (below). The umbilical cord between tribunals and the ‘ordinary courts’ is carefully maintained in recent reforms, as discussed further in Chapter 11. The case for separate principles of public law is not only jurisdictional but also normative. It originates in a view of the state as ‘different’ and ‘exceptional’ – endowed with the qualities of Hobbes’s ‘Leviathan’.63 The state exercises sovereign power, different in kind from the great powers in practice wielded by private corporations or multinational enterprises (MNEs). The state is seen to possess the monopoly of force; the use of force is illegitimate without state authorisation. The state has financial and economic prerogatives; it controls the currency and collects taxes; its regulatory powers can be used in such a way as to unbalance contractual relations.64 The state possesses the ultimate power of legislation (see Chapter 4). It acts as representative of the common good in the collective public interest (below). Speaking of the Crown, a metaphor used

59

60 61

62

63

64

See similarly, C. J. Hamson, Executive Discretion and Judicial Control: An aspect of the French Conseil d’Etat (Stevens, 1954). Lord Woolf, ‘Droit public – English style’ [1995] PL 57. O’Reilly v Mackman [1983] 2 AC 237 (Lord Diplock). See also H. Woolf, ‘Public law – private law: Why the divide? A personal view’ [1986] PL 220 and Protection of the Public: A new challenge (Stevens, 1990). Contrast D. Oliver, ‘Public law procedure and remedies – do we need them?’ (2002] PL 91. As provided for by the Constitutional Reform Act 2005, the UK Supreme Court is about to take the place of the House of Lords.. C. B. Macpherson (ed.), Thomas Hobbes’ Leviathan (1651) (Penguin Books, 1968). And see C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford University Press, 1962). T. Daintith, ‘Regulation by contract: The new prerogative’ [1979] CLP 41, explained in Ch. 8.

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to symbolise the state in many of the common law jurisdictions, the Canadian Supreme Court once said: The Crown cannot be equated with an individual. The Crown represents the State . . . It must represent the interests of all members of Canadian society in court claims brought against the Crown in Right of Canada. The interests and obligations of the Crown are vastly different from those of private litigants making claims against the federal government.65

Thus the state is not the mere collection of private persons dressed up in official uniforms presented by Dicey; to equate the state with its ‘subjects’ is therefore profoundly misleading and arguably shows a wilful disregard for power imbalance.66 Because it does not admit the imbalance, no private law system can provide appropriate answers for public law problems. The special character of the state needs to be matched by a special and distinctive public law.67 One reason why the waves of liberalisation, privatisation and managerialism that swept through the English-speaking world during the 1980s created concern amongst public lawyers was anxiety for the normative values of their discipline. It was feared that the underlying tendency for public law ‘to be swamped and dissolved by the waters of English private law-based common law and statute law’ would be accentuated. If the distinction between public law and private law were to be dismantled, it would be ‘public law rather than private law which risks being swept away’.68 Thus Cane describes the public/ private division as embodying for its supporters, ‘an attractive normative theory of the way power ought to be distributed and its exercise controlled’.69 One response to problems of inequality is offered by the concept of human rights. Pre-eminently, it may be thought, human rights are a public law concept, since they can be claimed only against the state. In line with this reasoning, the HRA does not have ‘horizontal effect’; it is applicable only to public authorities and bodies carrying out public functions.70 Procedurally the Act is ambivalent, however; it allows the acts of public authorities to be challenged – consonant with the common law tradition – in every type of proceeding. Increasingly too, arguments over human rights are raising normative questions, as the public/ 65 66

67

68

69

70

Rudolph Wolff & Co Ltd and Noranda Inc. v The Crown [1990] 1 SCR 695, 69 DLR (4th) 392. See J. Allison, ‘Theoretical and institutional underpinnings of a separate administrative law’ in Taggart (ed.), The Province of Administrative Law (Hart Publishing, 1999), p. 75. See M. Loughlin, The Idea of Public Law (Oxford University Press, 2004) and the review by Allison (2005) 68 MLR 344. M. Freedland, ‘The evolving approach to the public/private distinction in English law’ in Freedland and Auby (eds.), The Public Law/Private Law Divide: Une entente assez cordiale? (Hart Publishing, 2006), p. 107. P. Cane, ‘Accountability and the public/private distinction’ in Bamforth and Leyland (eds.), Public Law in a Multi-Layered Constitution (Hart Publishing, 2003), p. 276. And see M. Taggart, ‘The peculiarities of the English’: Resisting the public/private law distinction’ in P. Craig and R. Rawlings (eds.), Law and Administration in Europe (Oxford University Press, 2003), p. 119. M. Hunt, ‘The ‘horizontal effect of the Human Rights Act’ [1998] PL 423.

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Red and green light theories

private division works in practice to produce outcomes that some think unjust. Why, it is asked, should it be wrong for a state-run nursing home to close its doors or turn away a patient, when a private home can do so with impunity?71 Surely human dignity is a universal right? Questions like this put the public/ private divide in issue.72 An alternative response, and one preferred by the authors, is to search for values common to public and private law, capable, if properly handled, of bridging the divide (p. 46 below). Common law principles and concepts are sufficiently flexible to provide appropriate answers to problems involving the state and public authorities.73 We do not deny that the state has special functions. The legislative process is undoubtedly special, a fact acknowledged in the distinction drawn between lawmaking and administrative rule-making in Chapters 4 and 5. That the common law is holistic does not mean that identical rules should be applied automatically across the board. Specific situations call for thoughtful specific answers and not mechanical application of the totemic word ‘public’. Power has never been the monopoly of the state or its institutions. Today, as Cane wryly observes, ‘It is not just that relations between the public and private spheres have become more complex and multi-faceted . . . Rather, the two spheres have become inextricably interwoven in a process better analogised to the scrambling of an egg than to the weaving of a two-stranded rope’.74 Shapiro’s sense of a ‘bounded and billeted’ administration is rapidly disappearing. Outside the boundaries of the nation state, fragmentation is still more pronounced: states, agencies, international institutions and multinational corporations mingle and exercise ambiguous forms of authority. Separate public and private law principles are hard to apply in the post-modern world of fragmented governmental structures; the outcome is the sterile jurisdictional disputes in which lawyers specialise. Teubner has argued that ‘neither public law, as the law of the political process, nor private law, the law of economic processes, has the capacity to develop adequate legal structures in relation to the many institutional contextures of civil society’.75 He calls for ‘polycontexturality’, a frame of mind in which ‘the simple distinction of state/society which translates into law as public law v private law needs to be substituted by a multiplicity of social perspectives which are similarly reflected in the law.’ On just this note, Karen Yeung notes how competition law is:76 71 72 73

74 75 76

See YL v Birmingham City Council [2007] UKHL 27 discussed at p. 380 below. See A. Clapham, Human Rights in the Private Sphere (Oxford University Press, 1993). D. Oliver, ‘The underlying values of public and private law’, and M. Taggart, ‘The province of administrative law determined?’ in Taggart (ed.), The Province of Administrative Law; and see D. Oliver, Common Values and the Public-Private Divide (Butterworths, 1999). Cane, ‘Accountability and the public/private distinction’, p. 248. G. Teubner, ‘The many autonomies of private law’ (1998) 51 CLP 393, 396. K. Yeung, ‘Competition law and the public/private divide’, in Freedland and Auby (eds), The Public-Private Divide : Une entente assez cordiale? (Hart Publishing, 2006), p. 163.

22

Law and Administration moving beyond its original focus on private economic power to encompass public power, at least in so far as it may impact on the competitiveness of markets. Thus, in its modern guise competition law provides an important means by which economic power, primarily private economic power but increasingly also public economic power, is controlled and restrained.

Her conclusion is that ‘the elusive and uncertain public/private divide is unlikely to provide any real assistance’; for relevant principles and values, we must turn to economic theory. Much the same is true in respect of corporations, which should not be free to operate as predators on behalf of their owners or shareholders.77 Increasingly, they are subject to a range of new regulatory disciplines, seen as the most effective way to tame anticompetitive and predatory behaviour (see Chapter 6).78 Again, ‘good governance’ values obtaining in the public sector are gaining ground nationally as principles of ‘corporate governance’ while on the international scene ‘an ethical floor of responsibilities that MNEs should observe is coming into being’.79 Used descriptively, the public/private distinction has to be accepted: it is simply a fact, for example, that the HRA is a public law measure applicable only to public authorities and many further examples of rules based on a public/private distinction will be found throughout this book. A procedural distinction, though not an exclusive public law jurisdiction, is convenient and sometimes necessary.80 The model of public law that we owe to Dicey is, like much in English law, incomplete, incoherent and inconsistent. But even when particular outcomes are – as they often are – disappointing, Dicey’s equality principle ‘conforms to a widely-held political ideal and preserves us from many practical problems’.81 Quite simply, it is the most practical ‘take off point’.82

3. Dicey and ‘red light theory’ Dicey spoke disparagingly of the French theory of séparation des pouvoirs but Vile reminds us that the idea of the balanced constitution, in which executive 77 78

79

80

81 82

As in NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277. J. Braithwaite and P. Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000), p. 531; J. Braithwaite, ‘The limits of economism in controlling harmful corporate conduct’ (1982) 16 Law and Society Review 481; ‘Corporate control: Markets and rules’ (1990) 53 MLR 170. P. Muchlinski, ‘International business regulation: An ethical discourse in the making?’ in Campbell and Miller (eds.), Human Rights and the Moral Responsibilities of Corporate and Public Sector Organisations (Kluwer Academic, 2004), p. 99. C. Harlow, ‘Why public law is private law: An invitation to Lord Woolf’, in Cranston and Zuckerman (eds.), The Woolf Report Reviewed (Clarendon Press, 1995). Hogg, Liability of the Crown. See J. Allison, ‘Variations of view on English legal distinctions between public and private’ (2007) 66 CLP 698, 711.

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power is constantly subject to checks and balances from both Parliament and the law courts, is itself a variant on the theme of separation of powers. Noting its peculiar attraction for lawyers, Vile called this ‘the theory of law’. The ‘executive’ must act according to the law, the ‘government’ must exercise leadership in the development of policy; but if the government was subject to the control of parliament, and the executive to the control of the courts, then a harmony could be established between the two roles of the ministers of the Crown. Ministerial responsibility, legal and political, was thus the crux of the English system of government. Whilst it remained a reality the whole edifice of constitutionalism could be maintained; should it cease to be a workable concept the process of disintegration between the legal basis and the operation of the government would begin.83

The ‘balanced constitution’ was an ideal-type. It never really existed and, given the present state of fusion between executive and Parliament, the idea of a constitution held in balance by a triadic division of functions is quite simply untenable. It has been tipped hopelessly out of kilter by the rise of political parties and popular democracy.84 The significance of the balanced constitution lies in its influence on public law. As administrators gained powers to make regulations and to adjudicate upon matters affecting the state’s subjects, lawyers and administrators pulled in opposite directions. Lawyers, trained in the Diceyan mode of thought, regarded these developments as threatening both Parliament and the courts. In consequence, the breakdown – or perceived breakdown – of the doctrine of ministerial responsibility, which formed the political arm of Dicey’s balance, brought cries of ‘elective dictatorship’.85 It is not surprising, therefore, to find many authors believing that the primary function of administrative law should be to control excesses of state power and, more precisely, subject it to the rule of the law courts. Light-heartedly, we have called this conception of administrative law ‘red light theory’ because of its emphasis on control. Professor Wade’s approach is unequivocal. In the first edition of his leading textbook, he used the metaphor of ‘constant warfare between government and governed’ to justify a narrow focus on ‘the manner of the exercise of power’.86 He expressed overt suspicion of the ‘vast empires of executive power’ coupled with the expectation that government would ‘run amok’. His later definition 83 84

85

86

Vile, Constitutionalism and Separation of Powers, pp. 230, 231. See the debate between S. Sedley, ‘The sound of silence: Constitutional law without a constitution’ (1994) 110 LQR 270 and Griffith, ‘The common law and the political constitution’. Lord Hailsham, The Dilemma of Democracy: Diagnosis and prescription (Collins, 1978), especially Ch. XVI. See also R. Brazier, Constitutional Reform: Re-shaping the British political system (Clarendon Press, 1991). H. W. R Wade, Administrative Law (Clarendon Press, 1961), p. 3. This short and incisive text is the basis for H. W. R. Wade and C. Forsyth, Administrative Law, 9th edn (Oxford University Press, 2004) (hereafter Wade and Forsyth).

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of administrative law as ‘the law relating to the control of governmental power’ hardly comes as a surprise: A first approximation to a definition of administrative law is to say that it is the law relating to the control of governmental power. This, at any rate, is the heart of the subject, as viewed by most lawyers. The governmental power in question is not that of Parliament: Parliament as the legislature is sovereign and, subject to one exception [European Community law] is beyond legal control. The powers of all other public authorities are subordinated to the law, just as much in the case of the Crown and ministers as in the case of local authorities and other public bodies. All such subordinate powers have two inherent characteristics. First, they are all subject to legal limitations; there is no such thing as absolute or unfettered administrative power. Secondly, and consequentially, it is always possible for any power to be abused. Even where Parliament enacts that a minister may make such order as he thinks fit for a certain purpose, the court may still invalidate the order if it infringes one of the many judge-made rules. And the court will invalidate it, a fortiori, if it infringes the limits which Parliament itself has ordained. The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok. ‘Abuse’, it should be made clear, carries no necessary innuendo of malice or bad faith. Government departments may misunderstand their legal position as easily as may other people, and the law which they have to administer is frequently complex and uncertain. Abuse is therefore inevitable, and it is all the more necessary that the law should provide means to check it . . . As well as power there is duty. It is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default . . . The law provides compulsory remedies for such situations, thus dealing with the negative as well as the positive side of maladministration.

Function distinguished from structure As a second approximation to a definition, administrative law may be said to be the body of general principles which govern the exercise of powers and duties by public authorities. This is only one part of the mass of law to which public authorities are subject. All the detailed law about their composition and structure, though clearly related to administrative law, lies beyond the proper scope of the subject as here presented. What has to be isolated is the law about the manner in which public authorities must exercise their functions, distinguishing function from structure and looking always for general principles.87

Wade, perhaps Dicey’s greatest and certainly his most influential heir, once described the spirit of Dicey’s work as ‘enduring’ and so, as this chapter demonstrates, it has proved to be. We have chosen to focus on it as an encapsulation 87

Wade and Forsyth, pp. 4–5 (emphasis ours).

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Red and green light theories

of the red light tradition in English administrative law. The liberal-democratic view of administrative law’s objectives, which strongly emphasises freedom from the state, derives directly from Dicey, whose account of the British constitution was never, as he seems to have believed, simply a description. It was an interpretation, inspired by his own values as well as those of the society in which he lived and worked. The ideology that formed the ‘background theory’ of his great works included an ardent belief in individualism, in laissez-faire economic policy and in the value of the common law. He showed no apparent interest in other functions for administrative law, such as regulation of relationships between public authorities that today it is increasingly asked to do. Dicey, along with many of his successors, felt that the ‘harmony’ of the British constitution was under threat from a shift of power away from Parliament and by greatly increased governmental powers (see Chapter 2).88 Insofar as he recognised and feared the trend to collectivism but suggested no alternative structures by which it might be countered, Dicey must bear some responsibility for the individualistic, citizen-versus-state approach in English administrative law.

4. Ouster clauses and the rule of law Central to red light theory, as we have taken care to emphasise, is the idea of the rule of law. Closely linked is the view that law courts are the primary weapon for protection of the citizen and control of the executive. Reflecting these sentiments, a leading textbook asserts: In matters of public law, the role of the ordinary courts is of high constitutional importance. It is a function of the judiciary to determine the lawfulness of the acts and decisions and orders of the Executive, tribunals and other officials exercising public functions, and to afford protection of the rights of the citizen. Legislation which deprives them of these powers is inimical to the principle of the rule of law.89

Whether the Government, acting through the legislature, should be able to exempt governmental activities from judicial oversight or drastically curtail the ambit of judicial review is therefore a crunch constitutional question, crucial to maintenance of the rule of law. Under the doctrine of parliamentary sovereignty, it is open to Parliament to restrict or entirely exclude judicial review. There are various ways to do this. 88

89

See M. Loughlin, Public Law and Political Theory (Clarendon Press, 1992), pp. 153–9, where the author calls Dicey’s philosophy ‘conservative normativism’. And see the debate between E. Barendt, An Introduction to Constitutional Law (Clarendon Press, 1998) and A. Tomkins, ‘Review article: Of constitutional spectres. Review of Eric Barendt: An Introduction to Constitutional Law’ [1999] PL 525. de Smith, Lord Woolf and J. Jowell , Judicial Review of Administrative Action, 6th edn (Sweet & Maxwell, 2007) [5-016].

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The most extreme is a total ‘ouster’, ‘privative’ or ‘preclusive’ clause, designed to deprive the courts of jurisdiction. Ousters that render decisions wholly unchallengeable in the courts impinge on the constitutional allocation of functions, raising the question whether access to the courts is, as courts are fond of asserting, truly a ‘constitutional right’.90 Less drastic, though still suspect, is retrospective legislation, which has the effect of nullifying a court decision. This may operate either to deprive a litigant of the fruits of a successful lawsuit – a form of retaliation censured by Wade in the context of the Burmah Oil case as an ‘unusual measure of retaliation’.91 Slightly less opprobrious is legislation designed to confine the benefits of a successful case to those who fought it, common in social security litigation.92 Such measures are hotly resented and often provoke judicial retaliation as attacks on the rule of law. Limitation clauses such as the six-week period for challenge frequently found in planning and compulsory purchase statutes are more acceptable. Judges have developed various strategies to emphasise their opposition to ouster. Ouster clauses are restrictively interpreted. A common law presumption has evolved whereby access to the courts is not to be denied save by clear statutory words;93 equally, it may be proclaimed a ‘constitutional’ or ‘fundamental’ right. The culmination of these approaches came in the celebrated Anisminic decision,94 where Lord Reid showed how an ouster clause can skilfully be ‘read down’, laying the foundation stone of modern judicial review. Before we read his speech, it is necessary to understand how limited at that date were the grounds for judicial review. In the case of tribunals such as the Foreign Compensation Commission (FCC), review lay in respect of ‘jurisdictional errors’ or errors of law concerning the competence of the tribunal to accept jurisdiction in a given case. (This very technical area of law is further discussed in Chapter 11). The effect of judicial invalidation of a decision was an elusive question. Thus Lord Reid in Anisminic describes a decision struck down for jurisdictional error as ‘a nullity’ and ‘void’, which amounts to saying that it is of no effect whatsoever. In other cases, decisions have been held ‘voidable’, meaning broadly that they are valid until set aside by a court.95 The distinction may have important consequences. A void decision has no legal effects, invalidates further decisions dependent upon it, and may create rights to compensation. The rights of third parties will, on the other hand, be frozen out if the decision is merely voidable. 90

91

92

93

94 95

R v Lord Chancellor, ex p. Witham [1997] 2 All ER 779 is discussed with further cases at pp. 114, 118 below. Wade & Forsyth, p 803, discussing Burmah Oil v Lord Advocate [1965] AC 75 and the War Damage Act 1965. T. Prosser, Test Cases for the Poor (Child Poverty Action Group, 1983); and see below, Ch. 16. Pyx Granite Co Ltd v Minister of Housing and Local Government [1960] AC 260. And see de Smith, Woolf and Jowell, Judicial Review of Administrative Action [4.014–020]. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. H. W. R. Wade, ‘Unlawful administrative action: Void or voidable?’ (1967) 83 LQR 499 and (1968) 84 LQR 95.

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The decision in issue in Anisminic came from the FCC, a statutory body set up under the Foreign Compensation Act 1950, which from time to time is asked to allocate funds received from foreign governments in respect of losses suffered by British nationals in overseas territories, in this case, after the Suez crisis. Anisminic, a British company claiming compensation, had been nationalised by the Egyptian government and sold to an Egyptian concern, raising the question whether it was a ‘British national’, for whom the funds were reserved. The FCC made a ‘determination’ ruling out Anisminic’s claim. On appeal, the House of Lords ruled by a majority that an error of law had been made. There was however an obstacle in the form of an ouster clause reading: ‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’ By a majority (Lord Morris dissenting), the House went on to decide that the FCC had committed a jurisdictional error against which the ouster offered no protection; the determination was a ‘purported determination’: Lord Reid: If the draftsman or Parliament had intended to . . . prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word ‘determination’ as including everything which purports to be a determination but which is in fact no determination at all. And there are no degrees of nullity. There are a number of reasons why the law will hold a purported decision to be a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others; if that were intended it would be easy to say so . . . There are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But . . . if it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law . . . [If] they reach a wrong conclusion as to the width of their powers, the court must be able to correct that – not because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal. If they base their decision on some matter which is not prescribed for their adjudication, they are doing something which they have no right to do and their decision is a nullity.

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The Government reacted swiftly. It tacked onto a bill, coincidentally before the House of Commons, an amendment designed to nullify the decision prospectively. But faced by angry letters to The Times from eminent lawyers and a hostile amendment, supported by the Law Lords and carried in the Lords, the Government backtracked. Section 3 of the Foreign Compensation Act 1969 provides for direct appeal to the Court of Appeal on a question of law concerning the construction of an Order in Council made under the Act. No further appeal lies to the House of Lords. Otherwise, save in cases of breaches of natural justice, a determination (including a purported determination) is not to be called in question in any court of law. The Anisminic issue resurfaced suddenly and unexpectedly more than thirty years later in the contentious context of asylum and immigration. As we shall see in later chapters, there had been a continual flow of appeals to tribunals and courts in immigration cases, many of which the Home Office had lost. It was not therefore especially surprising that the bill set out to reform the appeals system; it was surprising to find in it a draconian ouster clause, designed to replace the High Court’s jurisdiction with final appeal to a newly constituted Asylum and Immigration Appeals Tribunal (AIT).96 The motivation was said by the Home Office sponsors to be the need to relieve pressure on the courts from repetitive and unmeritorious appeals – an explanation undercut when the Home Secretary, David Blunkett, announced himself to be ‘personally fed up with having to deal with a situation where parliament debates issues and the judges then overturn them’. It was ‘time for judges to learn their place’; they did not ‘have the right to override the will of the House, our democracy or the role of Members of Parliament in deciding the rules’.97 A gauntlet had been thrown down to the judges. The first point that we wish to make about this unfortunate episode concerns drafting. English statutory drafting is said to be both precise and specific and the ouster in Clause 11 of the bill is an especially skilful example. It first dealt directly with the jurisdiction of the courts by providing that ‘No court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the [AIT].’ It went on to double-bank the ouster: No court may entertain proceedings for questioning (whether by way of appeal or otherwise) – (a) any determination, decision or other action of the Tribunal (including a decision about jurisdiction). . . (c) any decision in respect of which a person has or had a right of appeal to the Tribunal. . .

In case any loopholes were left, the draftsman added that these provisions were to: 96 97

See for a full account, R. Rawlings, ‘Review, revenge and retreat’ (2005) MLR 378. Quoted by A. Bradley, ‘Judicial independence under attack’ [2003] PL 397.

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Red and green light theories (a) prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision, or action of the Tribunal was a nullity by reason of (b) (i) lack of jurisdiction, (ii) irregularity, (iii) error of law, (iv) breach of natural justice, or (v) any other matter . . .

Only decisions made in bad faith were excepted. Finally, the draftsman anticipated the gateway afforded by the ECHR, providing that the power to challenge a public authority (including the tribunal) for acting incompatibly with the Convention under s. 7(1) of the HRA would be ‘subject to subsections (1) to (3) above’. Publication of the bill created uproar amongst lawyers. A speech from Lord MacKay, a previous Lord Chancellor, in the House of Lords debate shows how the bill’s opponents presented it as an attack on the rule of law: Those who are familiar with that branch of the law will recognise those words as coming from a speech of the late Lord Reid in the case of Anisminic. Those were the grounds on which he held that the decision of the Foreign Compensation Commission in that case was not protected by the statutory ouster, which was elaborate, because the statutory ouster purported to protect determinations of the commission. However broad that protection is, if there is no true determination of the commission, there is nothing to protect. Alert to that problem, those who have put the Bill together sought to avoid it. In my submission, that is a serious affront to the rule of law. Let me take a breach of natural justice. What the House of Commons has been asked to affirm by the Government – and has affirmed – is that the High Court should be prevented from intervening, even where there is a clear breach of natural justice on the part of the tribunal. . . In my submission, that strikes right at the very heart of the rule of law. Anyone who read the Bill should have appreciated that. . . [T]he Government were apparently willing to subvert the rule of law in relation to people who might well be at risk of their lives from persecution in a foreign land. 98

As with Anisminic, the Government drew back to a compromise position, providing that parties to an appeal in the AIT may ‘apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal’.99 Appeal is, however, strictly limited. An order can be made only if the court ‘thinks that the Tribunal may have made an error of law’, and only once in relation to each appeal. We shall pick this point up in Chapter 11. 98 99

HL Deb., vol. 659, col. 67. S. 26(1) and (2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

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The second lesson of this story is that the unwritten constitution is held together by understandings. As the Lord Chancellor, Lord Falconer, appearing before the House of Lords Constitutional Committee, explained: I think the rule of law also goes beyond issues such as specific black letter law. I think there are certain constitutional principles which if Parliament sought to offend would be contrary to the rule of law as well. To take an extreme example simply to demonstrate the point, if Parliament sought to abolish all elections that would be so contrary to our constitutional principles that that would seem to me to be contrary to the rule of law. The rule of law goes beyond specific black letter law; it includes international law and it includes, in my view, settled constitutional principles. I think there might be a debate as to precisely what are settled constitutional principles but it goes beyond, as it were, black letter law.100

Before we move on from the subject of ouster, we want to highlight a further constitutional development. Anisminic was decided long before the HRA ‘domesticated’ the European Convention in 1998, though after the UK ratified it. ECHR Art. 6(1) contains the important provision that: In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

This provision renders total ouster clauses highly suspect. It also requires government to look very carefully at administrative systems both to ensure that adjudicative machinery is in place where this is appropriate and also that the machinery is ‘Strasbourg compliant’. We shall follow this important development in Chapter 14. Again, Anisminic was decided before the UK acceded to the European Communities (see Chapter 4). In the years that followed, it was shown that EC law might have something to say on preclusive clauses. The point arose in Johnston v Chief Constable of the Royal Ulster Constabulary,101 a case involving equal opportunities. An Order in force during the Northern Ireland emergency excluded the use of firearms by female members of the Royal Ulster Constabulary (RUC). Ms Johnston sued in an industrial tribunal, arguing that the policy was incompatible with the EC Treaty and Equal Treatment Directive. The RUC relied on a ministerial certificate certifying that the conditions for derogation from the principle of equal treatment had been met which, if accepted, would have ousted the tribunal’s jurisdiction. The tribunal made a preliminary reference to the ECJ for an advisory opinion as to the compatibility of the Order with EC law. The ECJ replied: 100 101

CC, Relations between the Executive, Judiciary, and Parliament, HL 151 (2007) [25]. Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, [1986] 3 WLR 1038. The European Commission was an intervenor in the ECJ in support of Ms Johnston. In issue were s. 53(2) of the Sex Discrimination (Northern Ireland) Order 1976; TEC Art. 141 (ex 119) and Art. 6 of the Equal Treatment Directive (EC 76/207).

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Red and green light theories The right to an effective judicial remedy 16. The Commission takes the view that to treat the certificate of a minister as having an effect such as that provided for in article 53(2) . . . is tantamount to refusing all judicial control or review and is therefore contrary to a fundamental principle of Community law and to article 6 of the directive. . . 18. The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the constitutional traditions common to the member states. That principle is also laid down in articles 6 and 13 of the European Convention of Human Rights . . . 20. A provision which, like article 53(2) . . . requires a certificate such as the one in question in the present case to be treated as conclusive evidence that the conditions for derogating from the principle of equal treatment are fulfilled allows the competent authority to deprive an individual of the possibility of asserting by judicial process the rights conferred by the directive. Such a provision is therefore contrary to the principle of effective judicial control laid down in article 6 of the directive.

We have highlighted ouster clauses because of their great constitutional importance, not only to red light theorists. In national law, ouster clauses demonstrate the respective constitutional weightings of the rule of law and parliamentary sovereignty. The rule of law is, however, an ideal that transcends the national legal order. Our example therefore serves as a reminder that the UK is no longer an island. As we shall see in subsequent chapters, multi-level systems of law and governance are coming into being into which we are increasingly integrated.

5. ‘Green light theory’ The red light view of English administrative law as an instrument for the control of power and protection of individual liberty, the emphasis being on courts rather than on government, did not go unchallenged. In the period between the two world wars an alternative tradition grew up, which we have called ‘green light theory’. In using this metaphor, we do not wish to suggest that green light theorists favour unrestricted or arbitrary action by the state; what one person sees as control of arbitrary power may – as Carr suggested – be experienced by another as a brake on progress. But while red light theory looks to the model of the balanced constitution and favours strong judicial control of executive power, green light theory sees in administrative law a vehicle for political progress and welcomes the ‘administrative state’. In saying this, we must remember that both red and green light theories originated in earlier eras and try to understand their historical context. Both were, as Taggart reminds us: forged on the anvil of the emerging welfare state. Green light theorists looked to the truly representative legislature to advance the causes of workers, women, minorities and the disadvantaged. For them, the role of law was to facilitate the provision of statutorily

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Law and Administration established programmes of public services. Parliament was trusted to deliver socially desirable results, and so giving effect to Parliament’s intention comported with those theorists’ ideological leanings . . . A corollary to this approach was a deep suspicion of judges, who as a class were seen as hostile to collectivism and the welfare state. Employing Victorian canons of statutory interpretation to read down and in some instances scuttle entirely, social welfare legislation, the judiciary were viewed often as the enemy.102

During Dicey’s lifetime, the state grew exponentially. To some, including Dicey, this was frightening; it meant inroads into private property rights and individual freedoms and called for the protection of the law. To others it was unequivocally good. State action was necessary if the lot of the underprivileged in society was to be improved: pensions and unemployment benefit had to be funded; slum clearance required planning and compulsory purchase; and so on. Law was an essential tool in this crusade. As a green light was given to the interventionist state, law had to become proactive. Writing at the London School of Economics in the interwar period, and conscious of the close relationship between law, politics and social policy, Laski, Robson and Jennings were able to draw inspiration from abroad. In the United States, where realist and sociological jurisprudence were influential, the gaps between law, politics and administration were narrower. Before the New Deal, the Supreme Court had on several occasions restricted federal government power to regulate economic activity, through the medium of the commerce clause of the US Constitution and their freedom of contract doctrine.103 After the election of President Roosevelt in 1933, the Court showed every sign of reviving this case law.104 Under the shadow of the President’s happily unfulfilled threat to pack the Supreme Court, the Court gradually retreated, ceding economic power to the executive. The Supreme Court not only recognised the legitimacy of federal government intervention in the economy but also – and perhaps more importantly – ‘all but abandoned the idea that it had some special role in enforcing a line between constitutional law and politics’. The modern economy’s complexity and the wide range of public goals the national government could pursue . . . limited the contributions the Court could make. And, conversely, the political structure of Congress, in which states had substantial representation, made Congress better than the Court in determining whether any particular proposal crossed the line dividing national power from state power.105

102

103 104 105

M. Taggart, ‘Reinvented government, traffic lights and the convergence of public and private law. Review of Harlow and Rawlings: Law and Administration’ [1999] PL 124, 125. Lochner v New York 198 US 45 (1905). Schechter Poultry Corp v United States 295 US 528 (1935). C. Sunstein, ‘Constitutionalism after the New Deal’ (1987) 101 Harv. LR 421 likens the change to a ‘constitutional amendment’; G. Lawson, ‘The rise and rise of the administrative state’ (1994) 107 Harv. LR 1231 calls it ‘unconstitutional’.

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Roosevelt’s New Deal had set in place a new ‘administrative state’, with which lawyers had eventually to come to terms; it had, in short, necessitated the new attitude to state interventionism for which radical scholars in England were working. The new school of English administrative law writing was less insular and less hostile to collectivism than Dicey. Highlighting the international character of the movement, Gordon describes the voice of Canadian John Willis as ‘instantly recognisable’: He is clearly one of the gang – the legal realists who were concerned to expand the authority of administrative agencies to govern new areas of economic life; to promote their virtues as policy makers and adjudicators over those of their chief rivals, the courts; to defend them against charges of arbitrariness and absolutism; and to limit the scope of judicial review of their decisions. The voice is familiar in style as well as substance – the slashing sharp-pointed satirical barbs aimed to puncture the inflated claims of judicial ‘formalism’ and the blunt no-nonsense plain style used to highlight the virtues of civil servants’ ‘functionalism’ . . . Willis and the American realists are evidently steeped in a common set of argumentative modes and rhetorics as well as common aims.106

Gordon goes on to underscore the significant fact that all the principal intellectual defenders of the administrative state in the US had at some time held important posts in the New Deal administration. Jaffé, another member of ‘the gang’, wrote in his memorial to Landis, who had launched the first comprehensive defence of the administrative state,107 that ‘our generation – that of Landis and myself – judged the administrative process in terms of its stunning performance under the New Deal’.108 In Canada, Willis wrote that he wished ‘to talk administrative law with a civil servant and political science accent,’ to be a ‘government man’ and a ‘what actually happens man’.109 A further influence in providing a new model in which green light theories of administrative law could flourish was the work of the French jurist, Léon Duguit (1859–1928). Duguit’s theory was premised on a socialistic state in which strong government was a necessity110 and whose activities stretched far 106

107 108 109

110

R. Gordon, ‘Willis’s American counterparts: The legal realists’ defence of administration’ (2005) 55 UTLJ 405, 405-6. J. Landis, The Administrative Process (Yale University Press, 1938). L. Jaffé, ‘James Landis and the administrative process’ (1954) 78 Harv. LR 319, 322–3. J. Willis, ‘The McRuer Report: Lawyer’s values and civil servant’s values’ (1968) 17 UTLJ 351. And see L. Sossin, ‘From neutrality to compassion: The place of civil service values and legal norms in the exercise of administrative discretion’ (2005) 55 UTLJ 427. For an Australian parallel, see P. Bayne, ‘Mr Justice Evatt’s theory of administrative law: Adjusting state regulation to the liberal theory of the individual and the state’ (1991) 9 Law in Context 1. Duguit’s main works in this field were Traité du droit constitutionnel, 5 vols. (1911) and Les transformations du droit public (1913), tr. H. and F. Laski, Law in the Modern State (Allen and Unwin, 1921). Duguit developed his theory of public law under the influence of Emile Durkheim (1858–1917), whose great work on the Division of Labour (1893) started life as a dissertation on ‘the relationship of individualism and socialism’.

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beyond the traditional areas of law, order, justice and defence. He believed in a collectivist state whose function was to secure the provision of public services. These he defined as including ‘any activity that has to be governmentally regulated and controlled because it is indispensable to the realisation and development of social solidarity . . . so long as it is of such a nature that it cannot be assured save by governmental intervention’.111 The definition is broad enough to encompass all the main preoccupations of contemporary administrative law. Duguit’s theory laid the basis not only for a welfare state but also for a corporatist state in which planning and the control of private economic activity in the interests of the collectivity were legitimate state activities; he predicted indeed that transport, mining and electricity would ultimately become public services. Yet he rejected the idea of the state as a corporate entity with a legal life and legal powers of its own. The state was merely a collection of individuals ‘interdependent upon one another even for their daily and elementary needs’. The state had ‘duties’ rather than ‘rights’ or ‘powers’; sovereignty itself was a misconception.112 In Duguit’s ‘modern theory of the state’, ‘the one governmental rule is the governmental obligation to organize and control public services in such a fashion as to avoid all dislocation. The basis of public law is therefore no longer command but organization . . . government has . . . a social function to fulfil.’113 Like the green light theorists who built on his work, Duguit did not believe in absolute power and was strongly anti-authoritarian.114 Power was subject to inherent limitations, and the rulers, defined as those who possessed the power of implementing decisions, had only a limited mandate to act in the public interest or in the interests of social solidarity: In whatever manner the business of the state is managed, its fundamental idea is clear: government must perform certain definite functions. As a consequence a public service is an institution of a rigorously objective order controlled by principles equally imposed on the government and its subjects.115

In Duguit’s ideal state, the function of public law was first and foremost to provide the framework inside which the efficient operation of the public services could at all times be assured. Administrative law limited state action in two distinct ways: (a) through the notion that the state can act only in the public interest and for the public good; and (b) through the principle that the state must observe the law. Regulation and rules, which set out the principles of 111 112 113 114

115

Duguit, Law in the Modern State, p. 48. Ibid. See, similarly, H. Laski, A Grammar of Politics (Allen and Unwin, 1925), pp. 44–88. Duguit, Law in the Modern State, p. 49. H. Laski, ‘M. Duguit’s conception of the state’ in Goodhart et al., Modern Theories of Law (Oxford University Press, 1933), p. 56. Duguit, Law in the Modern State, pp. 51–4.

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operation, at once seemed more important than the adjudication of disputes. Duguit’s theory does, of course, find a place for adjudication. In case of doubt, administrative courts pronounce on the legality of administrative action. They have a third function. Duguit believed that the state was fully responsible for its acts and that every citizen was entitled to equality of treatment. Where a citizen suffered abnormal loss in the interest of the collectivity, compensation was due; loss caused by a state enterprise must be repaired by the state. Disputes between citizen and state were to be referred to administrative courts. These two ideas formed a complete new theory of administrative liability. New accounts of administrative law showing the influence of these various ideas began to appear in England. Essentially these were administrationcentred and collectivist in character. As Ivor Jennings saw the task of the lawyer, it was not to declare that: modern interventionism is pernicious, but, seeing that all modern states have adopted the policy, to advise as to the technical devices which are necessary to make the policy efficient and to provide justice for individuals . . . The problem to be discussed is the division of powers between administrators and judges and, given that judges must exercise some functions, the kind of courts and the judicial procedure necessary to make the exercise of the functions most efficient.116

For Jennings, administrative law was all the law relating to administration: It determines the organisation, powers and duties of administrative authorities. Where the political organisation of the country is highly developed, as it is in England, administrative law is a large and important branch of the law. It includes the law relating to public utility companies, and the legal powers which these authorities exercise. Or, looking at the subject from the functional instead of the institutional point of view, we may say that it includes the law relating to public health, the law of highways, the law of social insurance, the law of education, and the law relating to the provision of gas, water, and electricity. These are examples only, for a list of the powers of the administrative authorities would occupy a long catalogue.117

One senses here the functionalist concern with how things actually work. Jennings saw a new, descriptive role for academic administrative law, with a growing emphasis on statutory and regulatory regimes rather than the general principles of case law; he himself published a sectoral study of housing law.118 In extended studies of new and developing areas of administrative activity, vertical rather than horizontal studies were made. Typically interdisciplinary in nature, such studies drew on the ideas of non-lawyers to explain and provide 116 117 118

W. I. Jennings, ‘Courts and administrative law’ (1936) 49 Harv. LR 426, 430. Jennings, The Law and the Constitution, p. 194. Jennings, ‘Courts and administrative law’.

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context for legal rules. They were to promote a ‘hiving off’ of administrative law into its component parts – welfare, planning, housing, immigration, etc. – which tends to disguise its true structure. It is easier to confine the definition of administrative law to the general principles governing control of the use of power if the component parts of public administration have been hived off and treated separately. It is important to remember, however, that ‘the organisation of this complexity is itself a form of public law, and executive self-regulation is a source of rules as worthy of analysis by the public lawyer as are those made by courts and legislatures’.119 Citing Jennings’s definition with approval in the first English textbook devoted to administrative law,120 Griffith and Street explained that their book would focus primarily on three questions: • First, what sort of powers does the Administration exercise? • Secondly, what are the limits of those powers? • Thirdly, what are the ways in which the Administration is kept within those limits? This certainly does not suggest a permissive attitude to power – an unlikely stance for Griffith, who believed that ‘societies are by nature authoritarian. Governments even more so.’121 If for red light theorists the answer lay in courts and the rule of law, green light theorists saw judges and lawyers differently. Openly advocating reform of the antiquated legal system, they viewed the legal profession as too oldfashioned to reform itself. Green light theory focused on alternatives to courts. Thus Robson described the Donoughmore Committee, set up in 1931: to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decision, and to report what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the law . . .122

as paralysed by ‘the dead hand of Dicey’.123 Attacking at the same time legal reasoning and the profession, he damned the Report for rejecting the opportunity of a ‘boldly-conceived system of administrative courts’ headed by an administrative appeals tribunal, in favour of accepting ‘the patchwork quilt of ill-constructed tribunals which at present exists, and endeavour[ing] to remedy some of their more obvious defects’. Robson was not complaining that lawyers are wrong in seeking to protect 119 120 121 122 123

T. Daintith, ‘Book review’ [2006] PL 644, 646. J. Griffith and H. Street, Principles of Administrative Law, 5th edn (Pitman, 1973), p. 4. J. Griffith, ‘The political constitution’ (1979) 42 MLR 1, 2. Report of the Committee on Ministers’ Powers, Cmnd 4050 (1932), p. 1. W. Robson, ‘The Report of the Committee on Ministers’ Powers’ (1932) 3 Pol. Q. 346, 359.

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individual rights – though green light theorists did undoubtedly query their narrow focus on the right of property. His complaint was that their conceptual tools were inadequate for the task. He alleged that a profession which was incapable of reforming the legal system ought not to be let loose on the administrative process: The disappointing feature of the Report is its failure to make any significant contribution to the structure of the system. Instead of endeavouring to increase the sense of responsibility and independence of the administrative tribunals, the Report relies on a hostile judiciary to provide ‘checks and balances’. It recommends, accordingly, that the supervisory jurisdiction of the High Court to compel ministers and administrative tribunals to keep within their powers and to hear and determine according to law be maintained; and further, that anyone aggrieved by a decision should have an absolute right of appeal to the High Court on any question of law.124

Robson was not arguing for a robotic administrative law or a public administration devoid of values – very much the reverse. What he worked for was justice for the many – what Street would later call ‘justice in the welfare state’.125 What Robson would have thought of the contemporary restructuring of the system of administrative tribunals by the Tribunals, Courts and Enforcement Act 2007 is an interesting question (see Chapter 11).

6. ‘Green light theory’ and control Because they look in at administration from outside, lawyers traditionally emphasise external control through adjudication. To the lawyer, law is the policeman; it operates as an external control, often retrospectively. But a main concern of many green light writers was, as already suggested, to minimise the influence of courts: courts, with their legalistic values, were seen as obstacles to progress, and the control that they exercise as unrepresentative and undemocratic. ‘The lawyers’, said Robson, ‘still regard themselves as champions of the popular cause; but there can be little doubt that the great departments of state . . . are not only essential to the well-being of the great mass of the people, but also the most significant expressions of democracy in our time.’126 In the same mode, we find Hutchinson seeking to re-politicise the notion of ‘control’: [Courts] take an overly historical approach to deciding disputes; they rely on an adversarial process; they limit the amount of relevant information on which decisions can be made; they are ignorant of bureaucratic concerns and workings; they allow access to only a limited

124 125 126

Ibid., pp. 360–1. H. Street, Justice in the Welfare State, 2nd edn (Stevens, 1975). W. Robson, Justice and Administrative Law, 3rd edn (Stevens, 1951), p. 421.

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Law and Administration number of individuals; they fail to monitor the impact of their decisions; they ignore the claims of collective interest; they adopt a negative cast of mind; and they are imbued with an individualistic philosophy. In short, the work of the courts is qualitatively incoherent and quantitatively ineffective. They engage in an inescapably political enterprise and function in a way that is incompatible with their self-imposed democratic responsibilities . . . [I]t will be necessary to give up on the courts entirely in the campaign to develop a better organisational ethic and democratic practice. In seeking to repoliticise the vast administrative regions of contemporary society and to oblige the ship of state to sail under democratic colours, it is necessary to throw liberalism overboard and cast off the moorings of the public/private distinction. On a democratic voyage of discovery there is no chart to follow and no grand manual of statecraft to consult. On the oceans of possibility, empowered citizens must be allowed to dream their own destinations and steer their own courses.127

Red light theory prioritises courts; green light theory prefers democratic or political forms of accountability. Thus Laski advocated citizen participation in the form of parliamentary advisory committees – a precursor of the modern, departmental Select Committees – to oversee the work of government departments. He also advised attaching to each department a ‘users’ committee of citizens affected by its operations plus a small, ‘clearly impartial’ investigatory committee to deal with serious charges against departments – a proposal with considerable resonance in the age of ‘citizen participation’ and ‘focus groups’.128 Committees were seen as an extension of the long tradition of lay participation in governance.129 Griffith set out his personal creed in ‘The Political Constitution’,130 where he caustically dismissed the idea of a justiciable and enforceable Bill of Rights, arguing for a collectivist view of ‘rights’ as group interests or ‘claims’ to be evaluated through the political process. On the other hand, Griffith stressed the need for access to information, open government, a free and powerful press, decentralisation through local government and a strengthened Parliament. But if the red light ‘model of law’ is to be abandoned, many feel that something other than the traditional ‘model of government’ must take its place. Few would wish to set sail in a barque as frail as that of ministerial responsibility. And because it revealed the inadequacies of ministerial responsibility, Crichel Down is often described as the beginning of modern English administrative law. Briefly to revisit that forgotten controversy, Crichel Down had been acquired as a bombing range by the Air Ministry before World War II. 127

128

129 130

A. Hutchinson, ‘Mice under a chair: Democracy, courts and the administrative state’ (1990) 40 UTLJ 374, 375–6, 403. W. Gwyn, ‘The Labour Party and the threat of bureaucracy’ (1971) 19 Political Studies 383, 389. K. Wheare, Government by Committee (Oxford University Press, 1955). Griffith, ‘The political constitution’. See now G. Gee, ‘The political constitutionalism of JAG Griffith’ (2008) Legal Studies 20.

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Subsequently, when no longer required for these purposes, it was transferred to the Ministry of Agriculture. A dispute arose when the Ministry, wishing to dispose of the land, tried to let it to a new tenant instead of allowing its original owners to buy it back. Fierce objections from the latter forced a public inquiry, which established the responsibility of civil servants both for the policy and also for its execution.131 Controversially, the minister, Sir Thomas Dugdale, accepted responsibility and resigned. To most commentators, Crichel Down exposed a world of administrative policy and decision-making apparently immune from political and parliamentary controls. To Griffith ‘the fundamental defect revealed was not a failure in the constitutional relations of those involved nor the policy decisions nor even the length of the struggle [the complainant] had to wage. It was in the method and therefore in the mental processes of the officials’.132 Content to rely on ‘that personal integrity which is so much more than an absence of corruption’, Griffith concluded that the civil service must be left to put its own house in order. For those who were less trusting, yet did not wish to tip the balance too far in the direction of judicial control, the challenge was to provide alternatives. Discussing red light theories, we talked of ‘control’ through courts. We did not stop to unpack the word. Control can be symbolic or real; it can mean to check, restrain or govern. Griffith and Street clearly sensed latent ambiguities, remarking that ‘A great deal turns on the meaning which is attached to the word “controls”. Banks control a river; a driver controls his car. The influence of a parent over a child may be greater than the power of a prison guard over a convict.’ 133 Here the ‘controls’ are direct and internal rather than indirect and external. To extend our metaphors, however, a river bank may be inspected by an officer of the water board – today more probably the official of a privatised water authority or regulatory agency – to see that it is in good repair; a policeman may stop the driver and caution him for speeding; a health visitor may advise the child’s parents to exert a different kind of influence; and the prison guard may be questioned by the board of visitors. These are all external controls, but they are not judicial. Dicey’s controls were also external, as the concept of ‘checks and balances’ implies. The first control on administrative activity is (as Shapiro indicated) legislative. The second is internal, hierarchical and supervisory.134 Consider the doctrine of individual ministerial responsibility, central to the argument over Crichel Down. One function of the doctrine is to require the minister, as head of his department, to supervise the activities of his subordinates by establishing 131

132 133 134

Report of the Inquiry into Crichel Down, Cmnd 9176 (1954) and HC Deb., vol. 530, cols. 1182–302. J. Griffith, ‘The Crichel Down Affair’ (1955) 18 MLR 557, 569. Griffth and Street, Principles of Adminstrative Law, p. 24. See further T. Daintith and A. Page, The Executive in the Constitution: Structure, autonomy and internal control (Oxford University Press, 1999).

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policies and checking the way in which they are implemented. The doctrine also provides for external control through responsibility to Parliament, but this is envisaged as a last resort. So Griffith hints at the superiority of internal control when he prescribes as a remedy for Crichel Down ‘more red tape not less’. A different distinction is between prospective and retrospective control. Legislation is prospective in that it controls administrative activity by prescribing its bounds. Judicial review of administrative action is primarily retrospective, although it also possesses a prospective dimension. Lawyers assume and administration tacitly accepts that judicial rulings set boundaries for future conduct.135 Lawyers like to assume that administrators approach law in the same way as lawyers, ranking it hierarchically and respecting its binding and boundarysetting nature. Dimock – a lawyer by training – suggests that law ‘controls’ the administrator in three different ways: (i) it tells him what the legislature expects him to accomplish; (ii) it fixes limits to his authority; and (iii) it sets out the substantive and procedural rights of the individual and group.136 The order may be significant: administrators are necessarily policy-orientated or, to put this differently, interested in outcomes. Positively, administrators see law as a set of pegs on which to hang policies; negatively, as a series of hurdles to be jumped before policy can be implemented, in which sense law acts as a brake. If law conflicts with policy, the official tries to change the law and, if this proves impossible, may sometimes set it aside or ignore it. There is much evidence too that officials do not always respect the hierarchy of legal norms. Junior officials may follow policy directives from above in preference to legislation and they do not always know of the existence of case law or realise its significance. In short, the values and objectives of the two professions differ and they may be unsympathetic to each other’s viewpoints. As public administrators, Rosenbloom and O’Leary complain that ‘administrative law texts aimed at law students and legal practitioners lack a realistic grasp of what most public administrators actually do, the organisational settings in which they work, and the values that inform their activities. They [lawyers] focus on overhead and control functions, not on implementation and service delivery.’137

7. Allocation of functions Discussing the allocation of functions in the English governmental and administrative system, Ganz criticised the way in which theories of the balanced constitution seek to distinguish ‘legislative’, ‘judicial’ and ‘administrative’ functions.138 For Ganz, decision-taking is a spectrum, ranging from ‘fixed rules at one end to a purely discretionary act at the other. No clear lines can be 135 136 137

138

P. Atiyah, Pragmatism and Theory in English Law (Stevens, 1987). M. Dimock, Law and Dynamic Administration (Praeger, 1980), p. 31. D. Rosenbloom and R. O’Leary, Public Administration and Law, 2nd edn (Marcel Dekker, 1996), pp. vi, vii. G. Ganz, ‘Allocation of decision-making functions’ [1972] PL 215, 216.

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drawn where the one activity stops and the other begins as they shade off into one another imperceptibly.’ Lawmaking is, for example, a continuous process, starting normally in a government department, where policy is formulated and drafts made before they are submitted to Parliament, which technically ‘makes’ the law.139 The process ends again with the executive, responsible for seeing the law brought into force. In terms of separation-of-powers theory, the action passes from one organ of government to another but the stages are not discrete. Every stage of the process involves value judgements and everything turns on the choice of the decision-maker: Rules are themselves value judgements whereas discretion is the power to make a value judgement. In practice the difference may not be very great . . . where the rule contains words such as ‘reasonable’ which amount to a delegation of discretion to make value judgements . . . When the problem arises of who should make decisions in a particular field the controversy should centre not on whether these involve the application of rules or discretion but on who should make the necessary value judgements. Looking at this from the point of view of the legislature there is a wide area of choice. Parliament may make the value judgements itself and embody them in reasonably precise rules in statutes. This narrows the area of discretion to be exercised by whoever is charged with the application of the rules but does not eliminate it. The choice has to be made between the courts, administrative tribunals and sometimes even ministers or independent statutory bodies as interpreters of the rules laid down. In many areas it is not, however, possible or even desirable to formulate value judgements in the shape of detailed rules. Especially in a new field it may be necessary to make value judgements on a case-to-case basis. This can be done by laying down rules embodying very broad standards or conferring wide discretionary powers. These powers may also be given to courts, administrative tribunals, Ministers or a specially created statutory body.140

Here Ganz makes two points which have proved central to the development of modern administrative law. The first concerns administrative discretion, a topic to which we return in Chapter 5; the second concerns the primacy of the democratically elected legislature. In common with other green light theorists, Ganz believed that judges should not interfere with the allocation of functions as established by statute; by so doing, they substituted the court for the rightful decision-maker chosen by Parliament. And she forcefully links the procedural question of allocation of functions with the question of values. Where courts cross jurisdictional boundaries to impose ‘judicial’ procedures on the administration, they are in fact substituting their own values for those of the administration. The argument advanced is two-pronged: on the one 139 140

M. Zander, The Law-Making Process, 6th edn (Cambridge University Press, 2005). Ganz, ‘Allocation of decision-making functions’.

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hand, administrative procedures are more accessible and ‘user-friendly’ than courts; equally important, the new institutions are less imbued with old ideas and ideologies. Ganz’s position typifies green light theory. It is also a mirror image of a statement from a very different source. In the celebrated Wednesbury case,141 the Sunday Entertainments Act 1932 empowered local authorities to license cinemas for Sunday performances, subject to such conditions ‘as the authority think fit to impose’. The defendants banned entry to children under 15 and the cinema sought a declaration that the condition was ultra vires: Lord Greene MR: When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case . . . it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles . . .? The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there are to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subjectmatter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters . . . I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty – those of course, stand by themselves – unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word ‘unreasonable’ . . . [a word which] has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66 gave the example of the red-haired teacher, dismissed because she had red hair. That

141

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. And see M. Taggart, ‘Reinventing administrative law’ in Bamforth and Leyland (eds.), Public Law in a Multi-Layered Constitution.

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Red and green light theories is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another . . . It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. [The] proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really [means] that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.

Controversy surrounds the meaning of this famous passage. Are there two tests contained within it? 1. that the authority must act only after consideration of relevant factors (the ultra vires test) 2. that the authority must not act ‘unreasonably’. Or did Lord Greene intend a single test? If the first interpretation is correct, then, after all procedural factors have been exhausted, the court is left with an overriding discretion to intervene whenever it sees extreme unreasonableness: ‘if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere’. If the second interpretation is correct, the court can oversee the range of factors which the decision-maker must take into consideration or must not consider – for example, he should not take into account wholly irrelevant questions, such as a school-teacher’s red hair – but must stop short either of dictating the weight to be given to the various factors or of evaluating the final decision. In later chapters, we shall see how the courts have grappled with these issues. We might compare the operation of the classical Wednesbury test to a plot of land, whose boundaries it is the court’s duty to patrol. Provided the decisionmaker does not put a toe outside the plot he is protected from judicial review. In the classical English formula, the decision-maker must not exceed ‘the four corners of his discretion’; in the terminology of the ECtHR, this is the decisionmaker’s ‘margin of appreciation’. The judge, who cannot review the merits of a decision, retains less discretion than if he possessed an independent power of evaluation. Yet this distinction is not really as clear as it seems. As the court

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sets the boundaries, it can in practice adjust them virtually at will by adding or subtracting factors which the decision-maker should have considered or not considered. Shortly before Lord Irvine (New Labour’s first Lord Chancellor) introduced the Human Rights Bill into Parliament, he found it expedient to affirm the true sense of the Wednesbury test. Irvine called it ‘shorthand for that constitutional school of thought which advocates self-restraint in public law matters. Moreover, it is shorthand which the vast majority of lawyers would still acknowledge to be the guiding principle of our system of judicial review’. He wrote that Lord Greene had: outlined substantive principles of judicial review which truly reflect the constitutional basis which he ascribed to them. First that a decision-maker has a broad discretion as to the factors which are to be taken into account before a decision is made, a discretion which is only restricted if the governing statute clearly requires that a particular factor must be considered, or must not be considered. Second, the celebrated principle of Wednesbury unreasonableness, that once the decision-maker has properly determined the range of relevant considerations, the weight to be given to each consideration is a matter within its discretion and a decision will only be struck down as unreasonable where it is so unreasonable that no reasonable decision-maker could have made it.142

We shall return to this debate in Chapter 3.

8. Towards consensus? Our objective in the first edition of this book was to reinstate the link between public law and politics, restoring an essential dimension of administrative law which had temporarily been mislaid. Identifying two sharply contrasted positions, we labelled them red and green light theory, distinguishing their opposing attitudes to the functions of state, government and judiciary: Red light theorists believed that law was autonomous to and superior over politics; that the administrative state was dangerous and should be kept in check by law; that the preferred way of doing this was through adjudication; and that the goal should be to enhance liberty, conceived in terms of the absence of external constraints. Green light theorists . . . believed that law was not autonomous from politics; that the administrative state was not a necessary evil, but a positive attribute to be welcomed; that administrative law should seek not merely to stop bad administrative practice, and that there might be better ways to achieve this than adjudication; and that the goal was to enhance individual and collective liberty conceived in positive and not just negative terms.143 142

143

Lord Irvine, ‘Judges and decision-makers: The theory and practice of Wednesbury review’ [1996] PL 59, 63. The convenient summary comes from A. Tomkins ‘In defence of the political constitution’ (2002) 22 OJLS 157.

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At one level, these differences reflect an accepted theoretical division in AngloAmerican legal theory;144 at another, a political divide. It is no coincidence that so many green light theorists were supporters of Roosevelt’s New Deal or, like Laski and Griffith, avowed supporters of the British Labour Party. It is this which made their views controversial. Times change and politics change with them. Attitudes to the state and the way the state is organised changed very sharply in the last decades. The New Deal policies in which green light theory was rooted came to be superseded in their country of origin by a liberal economic revolution worthy of being termed a ‘new constitutional order’.145 Today, this new order is itself under threat of demolition by an emergent ‘New, New Deal’. In the UK, a Conservative ‘blue rinse’ caused concern, as indicated earlier, for the values of public law; New Labour substituted new values and embarked, as we shall see in the next chapter, on a quiet constitutional revolution and mission to modernise. The ‘law/government’ divide recorded in this chapter has given ground before the notion of ‘governance’ – a ‘new process of governing; or a changed condition of ordered rule; or the new method by which society is governed’.146 This idea is further unpacked in Chapter 2. We shall find Teubner’s theme of hybridisation or ‘polycontexturality’ echoed in a shift away from ‘state-centred’ to ‘decentred’ regulation (see Chapter 6). What changes will be necessary in light of the financial disasters of 2008 it is too soon to say. Perhaps red and green light theory has had its day? We do not think so. Even if the battle has migrated, the old opponents are still squaring up. The lawversus-democracy battle rages in the context of the HRA, as courts, empowered by the Act, have moved centre stage (see Chapter 4). Red and green light theories are both well represented in the European Union, where the search for ‘bounded and billeted’ government continues.147 The idea captures an inevitable tension between administrative law’s two main functions. The problem of balance finds expression in an administrative lawyer’s simple definition as ‘the control of power, and the maintenance of a fair balance between the competing interests of the administration (central government, local government or specialised agencies) and the citizen’.148 It was also articulated by Richard Crossman, an avowed socialist who, as a Cabinet minister in Harold Wilson’s 144

145 146 147

148

See further P. Atiyah and R. Summers Form and Substance in Anglo-American Law: A comparative study of legal reasoning, legal theory and legal institutions (Clarendon Press, 1987); M. Horwitz, The Transformation of American Law, 1780-1860 (Harvard University Press, 2006) and The Transformation of American Law 1870-1960: The crisis of legal orthodoxy (Oxford University Press, 1992); N. Duxbury, Patterns of American Jurisprudence (Clarendon Press, 1995). M. Tushnet, The New Constitutional Order (Princeton University Press, 2003), p. 36. R. Rhodes, Understanding Governance (Open University Press, 1997), p. 6. C. Harlow, ‘European administrative law and the global challenge’, in Craig and de Burca (eds.), The European Union in Perspective (Oxford University Press, 1999). D. Yardley, Principles of Administrative Law (Butterworths, 1981), p. viii.

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1964 Labour Government, was responsible for introducing a parliamentary ombudsman (see Chapter 13): The growth of a vast, centralised State bureaucracy constitutes a grave potential threat to social democracy. The idea that we are being disloyal to our Socialist principles if we attack its excesses or defend the individual against its incipient despotism is a fallacy . . . For the Socialist, as much as for the Liberal, the State Leviathan is a necessary evil; and the fact that part of the Civil Service now administers a Welfare State does not remove the threat to freedom which the twentieth-century concentration of power has produced . . . In Britain we are faced with the following dilemma. Since the abuses of oligopoly cannot be checked by free competition, the only way to enlarge freedom and achieve a full democracy is to subject the economy to public control. Yet the State bureaucracy itself is one of those concentrations of power which threaten our freedom. If we increase its authority still further, shall we not be endangering the liberties we are trying to defend?149

We have used the lens of red and green light theory to highlight a number of attitudes to this dilemma. Jennings admits that ‘judges must exercise some functions’. Griffith acknowledges that the development of judicial review ‘during this century, and especially over the last thirty-five years, has brought great benefits and has been a restraint on overweening princes’.150 Are we to call Wade a green light theorist when he says that the detailed law about the composition and structure of administrative bodies is ‘clearly related to administrative law’? It would be wrong to leave the subject, however, without any mention of a growing consensus over administrative law values. This has crystallised around a trilogy of values – transparency, participation and accountability – that reflect the ‘good governance’ programmes of international institutions.151 Taggart, for example, lists openness, fairness, participation, impartiality, accountability, honesty and rationality as core values of constitutional and administrative law.152 The leading Australian textbook on judicial review calls for ‘a legal system which addresses the ideals of good government according to law’, including: openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality.153 Harden gives accountability – in the sense of giving an account of one’s conduct so that it may be evaluated and, in appropriate cases, sanctioned154 149 150 151

152

153

154

R. Crossman, Socialism and the New Despotism (Fabian Tract No. 298, 1956). J. Griffith, The Politics of the Judiciary, p. xvii. C. Harlow, ‘Global administrative law: The quest for principles and values’ (2006) 17 European J. of International Law 187. M. Taggart, ‘The province of administrative law determined’ in Taggart (ed.), The Province of Administrative Law, p. 4. M. Aronson, B. Dyer and M. Groves, Judicial Review of Administrative Action, 4th edn, (Lawbook Co. of Australia, 2009), p. 1. See M. Bovens, ‘Analysing and assessing accountability: A conceptual framework’ (2007) 13 ELJ 447; D. Oliver, Government in the United Kingdom: The search for accountability, effectiveness and citizenship (Open University Press, 1991).

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– the central place on any list of good governance values because there is no real possibility of ‘exit’ from public goods or from the ‘obligations which public authorities are entitled to impose on individuals’.155 With many red light theorists, Mulgan sees legal accountability as: in some respects the most powerful form of external review of executive action. Judicial hearings increasingly require the government to disclose publicly what it has done and why; they allow members of the public the right to contest such government actions, and they can force the government into remedial action. Indeed, an effective, independent judicial system is a fundamental prerequisite for effective executive accountability.156

Later chapters of this book, however, describe very varied forms of accountability machinery, ranging from formal parliamentary proceedings through public inquiries and ombudsman investigations to judicial review and, in Chapter 17, the sanction of liability. As Mulgan suggests and Austin has argued more explicitly, ‘government would only become truly democratic and accountable and its citizens would only have a meaningful right of participation in the making of decisions which affect them, if there was full access to governmental information.’ 157 In this way, freedom of information crept onto the administrative law agenda during the 1970s, when ‘government in the sunshine’ became a fashionable catchphrase.158 Government in the sunshine, however, cuts across the dominant British tradition of ‘government behind lace curtains’. It was not until the Freedom of Information Act 2000 came into force in 2005, after much pressure and endless official prevarication, that we could begin to talk of a transparent government system in Britain. Even then, when we look at the Act’s provisions in greater detail in Chapter 10, we shall find no ringing declaration or positive right of access to official information; instead, we shall find twenty-three specific exemptions from disclosure. The parallel shift inside administrative law from individuated to participatory due process is normally associated with Stewart’s powerful plea for the reformation of American administrative law.159 Classical English administrative law was, on the other hand, very sparing in its protection of collective interests, as green light theorists were quick to point out. Prosser suggests, however, that citizen participation is the goal towards which public law should be working. ‘However deficient participation may be in practice, it aspires to, and allows us 155 156

157

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159

I. Harden, ‘Citizenship and information’ (2001) 7 EPL 165, 167. R. Mulgan, Holding Power to Account: Accountability in modern democracies (Macmillan, 2003), pp. 75–6. R. Austin, ‘The Freedom of Information Act 2000: A sheep in wolf’s clothing?’ in Changing Constitution, 6th edn (2007). I. Harden and N. Lewis, The Noble Lie: The British constitution and the rule of law (Hutchinson, 1986); R. Austin, ‘Freedom of information: The constitutional impact’ in Changing Constitution, 2nd edn (1989). R. Stewart, ‘The reformation of American administrative law’ (1975) 88 Harv. LR 1667.

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to work towards, the development of institutions for the expression of the ideal of discussion free from domination, with equal power to affect decisions given to all those affected’.160 This view anticipates by many years the commitment of New Labour politicians to participatory, consultative and responsive governance (see Chapter 2), documented in a report from PASC.161 The independent ‘Power Inquiry’ was more ambitious than PASC, whose report is notably short on ideas for citizen input. The Inquiry optimistically concluded that citizens were not apathetic; there was strong participation in areas from voluntary work to pressure politics. It needed to be downloaded, an ideal that has found expression in New Labour’s plans for the restructuring of local government (see p. 86 below).162 Our own approach to problems of public administration and values is pragmatic. We ‘do not demand consistency with some overarching theory of the administrative state’; we are ‘prepared to accept new ways of addressing problems, even though they make a theoretical jumble of the legal culture’.163 We have simply set out to show that there is no single finite question or set of questions for administrative law to answer, revolving around a single attitude to the state’s relationships with its subjects. Similarly, there can be no finite list of values. Lawyers, we have argued, suffer from a professional deformation; they are too easily inclined to assume a judicial answer to every problem. Equally, they show a predisposition to leave the judicial branch of government unexamined. 160 161 162

163

T. Prosser, ‘Towards a critical public law’ (1982) 9 JLS 1, 11. PASC, Public Participation: Issues and innovations, HC 373 (2001/2). Power to the People: An independent inquiry into Britain’s democratic system (London: Rowntree Trust) 2006 S. Shapiro, ‘Pragmatic administrative law’ in Issues in Legal